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HARVARD LAW LIBRARY 



R™i.,d JUN 2 8 1922 



/^y 



r 



TTie Encyclopedic Digest of 
Virginia and West Vir- .; 

ginia Reports 

Cumulative Supplement 

BEING A COMPLETE 

Encyclopedia and Digest of all the Virginia and West Vir- 
ginia Case Law from Volume 104 to Volume 129 Vir- 
ginia Reports, both inclusive, and from Volume 
56 to Volume 87 West Virginia Re- 
ports, both inclusive. 



under the editorial supervision o^ 
Thomas Johnson Michie 

assisted by 
Beirne Stedman. 



VOLUME I. 



Thb Michie Company, Law Publishers 
Charlottesville, Va. 
1922. 



Copyright, 1922, 

BY 

'J'hr Mich IE Company. 



JUN ">■ ^ 1922 



PREFACE 



. The Cumulative Supplement has followed the plan of the original work 
both as to scope and subdivisions of titles, the same analysis lines, num- 
bering and lettering being used. For example: Misnomer as ground 
for the abatement of an action was treated in the original digest in the 
title ABATEMENT, REVIVAL AND SURVIVAL, under the analysis 
line "Misnomer/' II, B, and by referring to the same line in the Supple- 
ment similar matter will be found. New matter has been placed in the 
Supplement where it would have been placed in the original work if it 
had then been available, such new matter being distinguished by fractional 
numbered lines. For example: In the title above referred to, 
there was no authority in the original work on the point of withdrawal 
from the state as a ground of abatement, but there is such authority in 
the Supplement treated under "Withdrawal from State," II, Kyi. 

Where "ante'' and "post'* have been used in cross references, 
the Cumulative Supplement is meant; "see the title" referring to the 
original digest. For example: Under the cross references to the 
title AGENCY, vol. L p. 117, there appears: "See the title 
AGENCY, vol. 1, p. 240, and references there given. In addition, 
see ante, AFFIDAVITS; post, AGRICULTURE; etc." The ref- 
erence to the title AGENCY means that title in the original work; 
while the reference to AFFIDAVITS, AGRICULTURE, etc., means 
those titles in the Supplement. 

The Virginia Code of 1919 and Barnes' West Virginia Code, 1918 
edition, have been used as the basis for all references to the statute law. 



Table of Titles 



Cross references only are in italics. 



Abatement, Revival and Survival, 2. 

Abduction and Kidnapping, 20. 

Abortion, 21. 

Abutting Owners, 22. 

Accident, Casualty, Health and In- 
dustrial Insurance, 23. 

Accomplices and Accessories, 28. 

Accord and Satisfaction, 32. 

Accounts and Accoumiing, 35. 

Accretion^ 45. 

Acknowledgments, 46. 

Actions, 55. 

Adequate Remedy at Law, 60. 

Adjoining Landowners, 63. 

Adjournment, 67. 

Admiralty, 69. 

Adulteration, 70. 

Adultery, Fornication and Lewd- 
ness, 70. 

Advancements, 72. 

Adverse Possession, 79. 

Affidavits, 112. 

Affray, 115. 

Agency, 115. 

Agreed Case, 144. 

Agriculture, 144. 

AuBi, 146. 

Aliens, 147. 

Alimony, 149. 

Alteration of Instruments, 159. 

Amendments, 162. * 

Amicus Curiae, 184. 

Ancient Documents, 184. 

Animals, 186. 

ANNurrY, 194. 

Answers, 197. 

Appeal and Error, 211. 

Appearances, 437. 

a.pprentices, 443. 

Arbitration and Award, 444. 

Arguments of Counsel, 452. 

Arrest, 459. 

Arson, 463. 

Assault and Battery, 465. 

Assignments, 472. 



Assignments for the Benefit of Cred- 
itors, 486. 

Associations, 494. 

.Assumpsit, 497. 

Attachment and Garnishment, 522. 

Attempts and Soucitation to Commit 
Crime, 553. 

Attorney ane Cuent, 554. 

Attorney General, 573. 

Auctions and Auctioneers, 576. 

Audita Querela, 578. 

Automobiles, 578. 

Autrefois, Acquit and Convict, 589. 

Bail and Recognizance, 597. 

Bailments, 602. 

Bankruptcy and Insolv'Ency, 606. 

Banks and Banking, 616. 

Bastardy, 653. 

Beneficial and Benevolent Associa- 
tions, 658. 

Berkeley Springs, 671. 

Best ane Secondary Evidence, 671. 

Bicycles, 679. 

Bigamy, 679. 

Bill of Particulars, 680. 

Bill of Peace, 687. 

Bill of Review, 688. 

Bills, Notes and Checks, 697. 

Blood Stains, 747. 

Bonds, 748. 

Boundaries, 754. 

Bounties, 783. 

Boycott, 783. 

Breach of Promise of Marriage, 784. 

Breach of the Peace, 786. 

Bribery, 787. 

Bridges, 789. 

Briefs, 795. 

Brokers, 796. 

Building and Loan Associations, 819. 

Building Restrictions, 825. 

Burglary and Housebreaking, 827. 

Canals, 829. 

Carriers, 832. 

Case Certified or Reserved, 916. 



VI 



Table of Titles 



Cemeteries, 919. 


Clerks of Court, 953. 


Certiorari, 922. 


Colleges and Universities, 959. 


Chambers and Vacation, 928. 


Commitments and Preliminary Ex- 


Champerty and Maintenance, 930. 


amination OF Accused, 962. 


Change of Venue, 933. 


Common Law, 964. 


Charities, 936. 


Commonwealth's Attorney, 966. 


Chattel. Mortgages, 942. 


Compounding Offenses, 971. 


Circumstantial Evidence, 947. 


Compromise, 971. 


Citizenship, 949. 


Conditions, 977. 


Civil Death, 950. 


Confederate States, 979. 


Civil Rights, 951. 


Confession of Judgments, 980. 



Table of Words and PKrases 



ABANDON— ABANDONMENT, a. 

ABATEMENT, 2. 

ABBREVIATION, 20. 

ABIDING THE EVENT, 20. 

ABOUT, 20. 

ABOUT HIS PERSON, 20. 

ABOVE PROPERTY, 20. 

ABSENCE, 20. 

ABSOLUTE. 21. 

ABSTRACT, 21. 

ABUSE OF PROCESS, 21. 

ABUSIVE LANGUAGE, 21. 

A CASE AGREED, 23. 

ACCELERATION, 23. 

ACCEPTANCE, 23. 

ACCESS, 23. 

ACCESSORIES, 23. 

ACCIDENT, 23. 

ACCOMMODATION PAPER, 2». 

ACCORDING TO LAW, 35. 

ACCOUNTS, CLAIMS AND DEBTS, 
45. 

ACCOUNTS STATED, 45. 

ACCRUE, 45. 

ACQUIESCENCE, 55. 

ACQUITTED, 55. 

ACTIONABLE NEGLIGENCE, 55. 

ACTIONABLE WORDS, 55. 

ACTION ON THE CASE, 55. 

ACTIO PERSONALIS MORITUR 
CUM PERSONA, 59. 

ACT OF GOD, 59. 

ACTUAL, 60. 

ADDITIONAL COURTS, 60. 

ADDRESS, 60. 

ADEMPTION OF LEGACIES, 60. 

ADJACENT, 63. 

ADJUDICATING PRINCIPLES OF 
CAUSE, 69. 

ADJUSTERS, 69. 

ADMINISTRATORS — ADMINIS- 
TRATION, 69. 

ADMISSIONS AND DECLARA- 
TIONS, 69. 

ADJUTANT GENERAL, 69. 

AEVOPTION, 69. 

AD QU^STIONEM FACTI, ETC., 
69. 



ADVERSE. 79. 
ADVERTISEMENTS, 112. 
ADVICE OF COUNSEL, 112. 
AFFIDAVIT OF DEFENSE, 112. 
AFFIRMATION, 115. 
AFFREIGHTMENT, CONTRACTS 

OF, 115. 
AFTER, 115. 
AFTER-ACQUIRED PROPERTY, 

115. 
AFTER BORN CHILDREN, 115. 
AFTER DISCOVERED EVIDENCE, 

115. 
AFTER LOSS— AFTER THE FIRE, 

115. 
AFTER THEM, 115. 
AGENCY DIRECTOR, 143. 
AGGRAVATION OF DAMAGES, 

143. 
AGREEMENT, 144. 
AID, 146. 

AIDER AND ABETTOR, 146. 
AIDER BY VERDICT, 146. 
ALCOHOL, 146. 
ALIAS WRITS, 146. 
ALIGNMENT, 148. 
ALL, 157. 
ALLEY, 158. 
ALLOWED, 158. 
ALONG, 159. 
ALTERATION, 159. 
ALTERNATION, 162. 
AMBIGUITY, 162. 
AMNESTY, 184. 
AMORTIZATION, 184. 
AMOUNT IN CONTROVERSY, 184. 
AMUSEMENTS, 184. 
ANCESTORS, 184. 
ANCIENT LIGHTS. 185. 
ANCILLARY ADMINISTRATION, 

185. 
ANCILLARY GUARDIANSHIP, 185. 
ANCILLARY RECEIVERSHIP, 185. 
AND, 185. 

ANEMOMETER, 185. 
ANGUISH, 185. 
ANNEXATION OF TERRITORY, 

194. 



VIII 



Table of Words and Phrases 



ANNULMENT OF MARRIAGE, 197. 
ANOTHER SUIT PENDING, 197. 
ANTEDATING, 209. 
ANTE-NUPTIAL CONTRACTS AND 

SALES, 210. 
ANTI-TRUST LAW, 210. 
ANY, 210. 
ANY ACTION, 210. 
ANY AND ALL LICENSES, 210. 
ANY CITY, ETC., 210. 
ANY CL.MM, 210. 
ANY CONTRACT, 210. 
ANY DEVISE, 210. 
ANY DISTRICT, 210. 
ANY LAND, 210. 
ANY MEANS, 210. 
ANY OTHER ROAD, 210. 
ANY PERSON, 210. 
ANY POLICY, 210. 
ANY POWER, 210. 
ANY QUESTION, 210. 
ANY SEA-GOING SHIP, 210. 
ANY TIME, 210. 
A PART OF, 210. 
APPARATUS, 210. 
APPARENT EASEMENT, 210. 
APPEAL BONDS, 437. 
APPEAR, 437. 
APELLATE COURTS, 443. 
APPELLATE JURISDICTION, 443. 
APPLES, 443. 
APPLIANCES, 443. 
APPLICATION OF PAYMENTS, 443. 
APPLIED AND PAID, 443. 
APPORTIONMENT, 443. 
APPRAISEMENT, 443. 
APPROACHES, 443. 
APPROPRIATION, 443. 
APPROVERS, 443. 
APPROXIMATE, 444. 
APPURTENANCES, 444. 
APPURTENANT EASEMENTS, 444. 
ARCHITECTS, 452. 
ARDENT SPIRITS, 452. 
ARGUMENTATIVENESS, 452. 
ARISING— RISING, 458. 
ARMS, 458. 
ARMY, 458. 
ARRAIGNMENT, 458. 
ARREST OF JUDGMENT, 463. 
AS, 464. 



AS SOLD, 464. 

ASCERTAIN, 464. 

AS FIXED BY THEM, 464. 

ASSAULT, 464. 

ASSESSED VALUE, 472. 

ASSESSMENT, 472. 

ASSESSORS, 472. 

ASSIGN, 472. 

ASSIGNATION HOUSES, 472. 

ASSIGNMENT OF ERRORS, 472. 

ASSIGNMENT OF WAGES, 472. 

ASSIGNS, 493. 

ASSUMPTION, 52L 

ASYLUMS, 521. 

AT, 521. 

ATTAINDER, 553. 

ATTENDANCE OF WITNESSES. 553. 

ATTESTATION, 553. 

ATTORNEY'S FEES, 575. 

ATTRACTIVE NUISANCE, 575. 

AUDI ALTERAM PARTEM, 577. 

AUDITOR, 578. 

AUTHENTICATION, 578. • 

AVENUE, 596. 

AVOIDABLE CONSEQUENCES, 596. 

AWARD, 596. 

AWARDED, 596. 

AWNINGS, 596. 

BADGE OF FRAUD, 596. 

BAGATELLE SALOON, 596. 

BAGGAGE, 596. 

BAKERS, 606. 

BALLOTS, 606. 

BANK BOSS, 606. 

BANK CHECKS, 606. 

BANK DEPOSITS, 606. 

BANK EXAMINERS. 606. 

B. & O. R. R. COMPANY, 606. 

BAR, 653. 

BARGAIN AND SALE OF LANDS, 

653. 
BARREL, 653. 
BATTERY, 657. 
BAWDY HOUSES, 657. 
BAY, 657. 
BEER, 657. 

BEING THE SAME LAND, 657. 
BENEFICIARIES IN INSURANCE, 

670. 
BENEVOLENT, 670. 
BENTS, 670. 



Table of Words and Phrases 



IX 



BEQUEATH, 670. 

BEQUEST, 670. 

BETTING, 678. 

BEVO, 678. 

BEYOND A REASONABLE DOUBT, 

678. 
BIAS, 678. 
BIDS, 679. 
BILL> 679. 

BILLIARD SALOON, 679. 
BILLY, 746. 

BINDING RECEIPT OR SLIP, 746. 
BIRTHS, 746. 
BLACK JACK, 746. 
BLACKMAILING, 746. 
BLANKS. 746. 
BLASPHEMY, 747. 
BLEND, 747. 
BLIND, 747. 
BLOODHOUNDS, 747. 
BLUDGEON, 747. 
BLUE SKY LAWS, 747. 
BOARDING HOUSES, 747. 
BOARDS, 747. 
BOILER ACT, 747. 
BOILERMAKER, 747. 
BONA FIDE, 747. 
B.OOK ACCOUNTS AND ENTRIES, 

753. 
BOOKKEEPER, 753. 
BOOKS, 753. 

BOOKS OF ACCOUNT, 753. 
BOOMS AND BOOM COMPANIES, 

753. 
BOSS OF GAN-G, 753. 
BOWLING ALLEYS, 783. 
BOYS, 783. 

BRANCH RAILROAD, 783. 
BRANDS AND MARKS, 784. 
BRANDY, 784. 
BRASS, 784. 

BREAKING AND ENTERING, 786. 
BREWERIES, 786. 
BRIDGE COMPANIES, 789. 
BROTHERHOOD, 819. 
BROWN, 819. 
BUCKET SHOP, 819. 
BUDDLE, 819. 
BUDGET SYSTEM, 819. 
BUILDERS, 819. 
BUILDING CONTRACTS, 825. 



BUILDINGS, 826. 

BULK SALES LAW, 826. 

/BUiLLET, .826. 

BURDEN OF PROOF, 826. 

BUREAU, 826. 

BURIAL, 828.' 

BURNING, 828. 

BUSINESS, 828. 

BUT IF, 829. 

BUYER, 829. 

BY-LAWS, 829. 

BYRD LIQUOR LAW, 829. 

CABINET MAKER, 829. 

CALLS, 829. 

CANCEL— CANCELLATION, 831. 

CAP BOARD, 831. 

CAPIAS AD SATISFACIENDUM, 

831. 
CAPITAL, 831. 
CAPITATION TAX, 831. 
CARBON COPY, 831. 
CARE, 831. 

CARNAL KNOWLEDGE, 831. 
CARRIERS OF PASSENGERS, 915. 
CARRYING ON BUSINESS, 915. 
CARRYING WEAPONS. 915. 
CASE, 915. 
CASHIER, 919. 

CASUALTY INSURANCE, 919. 
CATTLE GUARDS, 919. 
CAUSA MORTIS, 919. 
CAUSED, 919. 
CAUSE OF ACTION, 919. 
CAVEAT, 919. 
CAVEAT EMPTOR, 919. 
CENSUS, 921. 
CERTAINTY, 921. 
CERTIFICATE, 921. 
CERTIFIED CASE, 921. 
CESTUI QUE TRUST, 928. 
CHALLENGE, 928. 
CHANCERY, 932. 
CHANGE, 932. 

CHARACTER IN EVIDENCE, 936. 
CHARGE, 936. 

CHARITABLE PURPOSES, 942. 
CHARITY HOSPITAL, 942. 
CHARTER, 942. 
CHASTITY, 942. 
CHATTELS, 945. 
CHEATS, 946. 



Tabl^ of Words and Phrasks 



CHECKS, 946. 
CHEMIST, 946. 
CHILD— CHILDREN, 946. 
CHILLING BIDDING, 946. 
CHIROPODY, 946. 
CHOSES IN ACTION, 946. 
CHURCH, 947. 
CIDER, 947. 
CIGARETTES, 947. 
CIRCUIT COURTS, 947. 
CIRCUITY OF ACTION, 947. 
' CITIZENS, 949. 
CITY, 950. 
CIVIL, 950. 
CLAIM, 952. 
CLAIMANT, 952. 
CLAMS, 952. 
CLASS LEGISLATION, 952. 

CLEAR, 952. 

CLERICAL ERRORS, 952. 

CLERKS, 952. 

CLIENTS, 958. 

CLOSE CORPORATION, 958. 

CLOSE OF ARGUMENT, 958. 

CLOSELY BUILT UP, 958. 

CLOUD ON TITLE, 958. 

CLUBS, 958. 

COAL, 958. 

COCAINE, 958. 

CODE, 958. 

CODEFENDANTS, 958. 

CODICIL, 958. 

COEMPLOYEES, 958. 

COHABITATION, 958. 

COLD STORAGE, 958. 

COLLATERAL ATTACK, 958. 

COLLECTED— COLLECTION, 959. 

COLLECTOR, 959. 

COLLISION, 961. 

COLLUSION, 96L 

COLORED PERSONS, 961. 

COLORE OFFICII, 961. 

COLOR OF TITLE, 961. 

COLUMNS, 961. 

COMBINATION, 961. 

COMBINATION P^ROCEEDINGS, 

961. 
COMITY, 961. 
COMMENCEMENT OF A SUIT OR 

ACTION, 961. 



COMMENSURATE — COMPENSA- 
TORY, 961. 

COMMERCE, 961. 
COMMERCIAL, 961. 
COMMISSION, 961. 
COMMISSIONERS, 961. 
COMMISSIONERS IN CHANCERY, 

962. 
COMMISSIONS, 962. 
COMMITMENT FOR CONTEMPT, 

962. 
COMMITTEE OF LUNATIC, 964. 
COMMON CARRIERS, 964. 
COMMON COUNCIL, 964. 
COMMON COUNTS, 964. 
COMMON GRANTO'R— COMMON 

SOURCE OF TITLE, 964. 

COMMON NUISANCE, 965. 
COMMON SCHOOLS, 965. 
COMMON WALL, 965. 
COMMONWEALTH, 965.* 
COMMUNICATION, 969. 
COMMUNITY, 970. 
COMMUNITY OF INTEREST, 970. 
COMMUNITY PROPERTY, 970. 
COMPANY, 970. 

COMPARATIVE NEGLIGENCE, 
970. 

COMPARATIVE VALUE, 970. 
COMPENSATORY, 970. 
COMPETENCY OF WITNESS. 970. 
COMPETITION, 970. 
COMPLETED, 970. 
COMPLETE RELIEF, 970. 
COMPLETION, 970. 
COMPOSITION WITH CREDIT-. 
ORS, 970. 

COMPOS MENTIS, 970. 
COMPOUND INTEREST, 971. 
COMPUTATION OF TIME, 976. 
CONCEALED WEAPONS, 976. 
CONCEALMENT, 976. 
CONCENTRATED FEEDING 

STUFFS, 976. 

CONCESSI, 976. 

CONCLUSIONS OF LAW, 976. 
CONCLUSIVE PRESUMPTIONS, 976. 
CONCURRENT, 976. 
CONDEMNATION PROCEEDINGS, 

977. 



Tablk of Words and Phrases 



XI 



CONDITIONAL LIMITATIONS, 
977. 

CONDITIONAL SALES, 977. 

CONDONATION, 979. 

CONDUCTOR, 979. 

CONFEDERATE HOME, 979. 

CONFEDERATE MEMORIAL AS- 
SOCIATION, 979. 



CONFEDERATE MEMORIAL DAY, 
979. 

CONFEDERATE MEMORIAL LIT- 
ERARY SOCIETY, 979. 

CONFEDERATE MONUMENT, 979. 

CONFEDERATE VETERANS, 979. 



The Encyclopedic Digest of Virginia and 

West Virginia Reports. 



VOL I-.-CUMULATIVE SUPPLEMENT. 



ABANDON-ABANDONMENT.— See post, CANALS; LACHES; LIMI- 
TATION OF ACTIONS; TURNPIKES AND TOLLROADS; WAIVER. 
As to abandonment of animals, see post, ANIMALS; CRUELTY TO ANI- 
MALS AND HELPLESS PERSONS. As to abandonment of wife as barring 
curtesy, see post, CURTESY. As to abandonment as ground for divorce, see 
post, DIVORCE. As to abandonment of husband as barring dower, se^ post, 
DOWER. As to abandonment of wife, see post, HUSBAND AND WIFE. 
As to abandonment of lease, see post, LANDLORD AND TENANT. As to 
abandonment of right to cut and remove timber, see post, LOGS AND LOG- 
GING; TREES AND TIMBER. As to abandonment of wife within meaning 
of workmen's compensation act, see post, MASTER AND SERVjVNT. As 
to abandonment of mining or oil leases, see post, MINES AND MINERALS. 
As to abandonment of child, see post, PARENT AND CHILD. As to aban- 
donment of railroad station, see post, RAILROADS. As to abandonment of 
contract, see post, RESCISSION, CANCELLATION AND REFORMA- 
TION; SALES. As to abandonment of street, see post, STREETS AND 
HIGHWAYS. 

The word abandon means to give up, cease to use. Southern Ry. Co. v. Com., 
128 Va. 176, 105 S. E. 65. 

"Intention to abandon, coupled with a surrender of possession, or what is 
equivalent thereto, constitutes legal abandonment. Smith v. Root, 66 W. Va. 
633, 634, 66 S. E. 1005; Garrett v. South Penn Oil Co., 66 W. Va. 587, 66 S. 
E. 741." Kunst V, Mabie, 72 W. Va. 202, 208, 77 S. E. 987. 

"Legal abandonment is largely a matter of intention. But intention is gen- 
erally proved by subsequent acts. The purpose is generally conceived be- 
fore the act is performed, and is seldom declared in advance of it. Hence the 
intentions of men generally have to be determined by their acts." Kunst v, 
Mabie. 72 W. Va. 202. 208, 77 S. E. 987. 

" The distinction between an abandonment and a forfeiture,' says Thornton 
on the Law of Oil and Gas, § 137, 'is often so thin as not to be distinguishable.' 
'Abandonment,' says he. Vests upon the intention of the lessee to relinquish the 
premises, and is therefore a question of fact for the jury; while a forfeiture 
does not rest upon an intent to release the premises, but is an enforced re- 
lease.' And in the same connection he says: 'Whether or not a lease has 
been abandoned is a matter of defense, and need not be negatived by the plain- 
tiff in an action for the rent.' Again, 'If the lessee in fact abandoned the lease 
for the purpose for which it was granted, it is not necessary for him to yield 
up actual possession of the surface, to enable the lessor to declare an aban- 
donment has been made.' " Garrett v. 5outh Penn Oil Co., 66 W. Va. 587, 596, 
66 S. E. 741. See post, LANDLORD AND TENANT; MINES AND MIN- 
ERALS; PENALTIES AND FORFEITURES. And see SURRENDER. 

Abandonment of Person Sick with Small-pox upon Shore of State. — Va. 
Code 1919, § 4399. 



ABATEMENT.— As to abatement of actions, sec post, ABATEMENT, RE- 
VIVAL AND SURVIVAL. As to abatement of appeals, see post, APPEAL 
AND ERROR. As to abatement of attachment, see post, ATTACHMENT 
AND GARNISHMENT. As to abatement of nuisances, see post,' NUISANCES. 
As to abatement of purchase money, see post, VENDOR AND PURCHASER. 
As to abatement of legacies, see post, WILLS. 



ABATEMENT, REVIVAL AND SURVIVAL. 

L Nature of Matter in Abatement, 4. 
n. jOrounds of Abatement, 4. 

A. In General, 4. 

B. Misnomer, 4. 

C. Capacity in Which Party Sues or Is Sued, 4. 

D. Nonjoinder and Misjoinder of Parties, 4. 

F. Variance, 5. 

G. Defects in Summons and Process, 6. 

K. Exception for Want of Jurisdiction — Plea to Jurisdiction, 6. 

KJ^. Withdrawal from the State, 8. 

L. Nonresidence of Defendant in Attachment or Other Proceeding, 8. 

M. Another Suit or Proceeding Pending, 8. 

P. Time of Bringing Action, 10. 

in. Form, Sufficiency and Construction of Plea, lo. 

V^A. In General, 10. 

A. Must Be Certain, 10. 

B. Must Be Verified, 11. 

D. Duplicity, 11. 

E. Must Give Plaintiff a Better Writ, 11. 
I. Construction of Plea, 13. 

IV. Time and Effect of Filing Pleas in Abatement, 12. 

V. Demurrer to Plea in Abatement, i3. 

VI. Pleas in Abatement in Ejectment, is. 

Vn. Pleas in Abatement in Criminal Oases, i4. 

A. Necessity and Grounds for Plea, 14. 

1. Legality of Evidence, 14. 

2. Illegal Constitution of Grand Jury, 14. 

B. Form and Sufficiency of Plea, 14. 

1. Must Be Certain, 14. 

2. Sufficiency in General, 15. 

C. Time for Filing Pleas in Abatement, 15 

D. Waiver of Right to Plead, 15. 

E. Trial of Pleas in Abatement, 15. 



Abatement, Revival and Survival 



Vm. Death or Other Disability, i5. 

A. Survival of Actions, 15. 

1. In General, 15. 

5. Trespass, 16. 

6. Real Actions, 16. 

J^a. In General, 16. 
b. Ejectment, 16. 

16. Action for Personal Injuries, 16. 

17. Malicious Prosecution, 17. 

18. Action for Wrongful Death, 17. 

B. Death or Disability of Parties Plaintiff or Defendant, 17. 

1. In General, 17. 

2. Parties Plaintiff — In Whose Name Revived, 17. 

a. Specific Instances, 17. 

3. Parties Defendant — Against Whom Revived, etc., 17. 

a. Specific Instances, 17. 

b. Death of One or More of Several Defendants, 17. 

d. Where Party Whose Powers Cease Is Defendant, 18. 
5. Death Pending Appeal, 18. 

7. Suggestion of Death, 18. 

C. Revivor of Suits and Actions, 18. 

J^. In General. 

1^. Time for Revival, etc., 18. 
1^. Who May Revive, 18. 
2. Modes of Revival, etc., 18. 
J^a. In General, 18. 

a. By Scire Facias, 19. 

b. By Motion, 19. 

c. In Chancery Causes — -Bill of Revivor, 19. 

4. Sufficiency and Time of Order of Revival,* 19. 

XV. Waiver of Plea, i9. 

XVI. Impliedly Oyerniling Plea, i^. 

XVn. Burden of Proof, i9. 

XVJULl. Trial, 20. 

CROSS REFERENCES. 

See the title ABATEMENT, REVIVAL AND SURVIVAL, vol. 1, p. 2, and 
references there given. In addition, see post, APPEAL AND ERROR; AT- 
TACHMENT AND GARNISHMENT; DEATH BY WRONGFUL ACT; 
EXCEPTIONS, BILL OF; EXECUTORS AND ADMINISTRATORS; 
MANDAMUS. As to necessity of exception to ruling sustaining demurrer to 
plea in abatement, see post, APPEAL AND ERROR. As to abatement of at- 
tachment, see post, ATTACHMENT AND GARNISHMENT. As to abatement 
of suit in mandamus, see post, MANDAMUS. As to revival or continuation of 
writ of mandamus, see post, MANDAMUS. 



Abatement, Revival and Survival 



I. NATURE OF MATTER IN 

ABATEMENT. 

See post, ''Grounds of Abatement/' 
11. 

II. GROUNDS OF ABATEMENT. 

A. IN GENERAL. 

Action of Detinue -~ Proceedings. — 

Va. Code 1919, § 6800. 

Want of Form.—Va. Code 1919, § 
60d5; Barnes Code. ch. 125, §§ 
9, 14. 

Plea in Abatement Only. — Va. Code 
1919, <§ 6105; Barnes Code, ch. 125, 
! 16. 

Breach of Insurance Policy. — The 

defense allowed an insurance company 
by Code of 1906, c. 126, § 64, by filing 
a statement that the company will rely 
on breach of condition, warranty, or 
clause of the policy, is not to be made 
by plea in abatement. Hinkle v. North 
River Ins. Co., 70 W. Va. €81, 688, 75 
S. E. 54. 

B. MISNOMER. 

Plea Not Allowed For.— Va. Code 
1919, § 6101; Barnes Code, ch. 125, § 
14. 

"Railroad" or ''Railway".— Va. Code 
1919, § 6, cl. 19. 

Correction on Motkm. — A judg- 
ment of justice against "B. & O. R. R. 
Co.," as described in the summons in- 
stead of Baltimore & Ohio Railroad 
Company, the corporation intended, is 
such a variance as formerly would have 
supported a plea in abatement, but since 
§ 1979 chap. 60, Code 1906, relat- 
ing to proceedings before justices, and 
§ 3834, chap. 125, Code 1906, applicable 
by analogy to such proceedings, no 
plea for misnomer can be received, but 
the same may be corrected on mere 
motion of the parties, or of his own 
motion by the justice. Stout v. Balti- 
more, etc., R. Co., 64 W. Va. 502, 63 
S. E. 317. 



C. CAPACITY IN WHICH PARTY 

SUES OR IS SUED. 

Marriage Shall Not Cause Abate- 
ment.— Va. Code 1919. ! 6166. 

This section changes the rule laid 
down in the original Digest (vol. 1, p. 
6.) on the authority of Hunt v. Wil- 
kinson. 2 Call (6 Va.) 49, 57. 

The marriage of a female plaintiff 
pending an action brought by her for 
damages for a personal injury, and 
failure to join husband, is not cause 
for abatement of action. Stevens v. 
Friedman, 58 W. Va. 78, 86, 61 S. E. 
132. 

D. NONJOINDER AND MISJOIN- 
DER OF PARTIES. 

No Ground for Abatement. — Va. 
Code 1919, § 6102. 

This section changes the rule laid 
down in the original Digest (vol. 1. p. 
7), on the authority of Brown r. Bel- 
ches, 1 Wash, (i Va.) 9. Barnes Code, 
ch. 126, § 17. 

Application of Statute. — Section 
3258a of the Virginia Code, 1904 (§ 
6102 Code 1919), which provides that, 
in a suit brought in a proper forum, 
whether in equity or at law, where it 
appears there has been a misjoinder of 
parties, plaintiff or defendant, the 
court may order the action or suit to 
abate as to any party improperly 
joined and proceed by or against the 
others as if such misjoinder had not 
been made, is inapplicable in a cade 
where plaintiffs in error are suing in 
a court of law to avail themselves of 
the benefit of three instruments in 
writing containing covenants of in- 
demnity and relief of the grantor in 
the first instrument, which were only 
available between the parties to the 
instruments and their privies. The 
plaintiffs' relief, if any, is in a court 
of equity. Mcllvane v. Big Stony 
Lumber Co., 105 Va. 613, 54 S. E. 
473. 



Abatement, Revival and Survival 



Carriers— Faflure to Join Copart- 
ners or Coproprietors. — Va. Code 
1919, § 3931; Barnes Code, ch. 104 

§ 9. 
Nonjoinder — Husband and Wife. — 

In Stevens v. Friedman, 58 W. Va. 78, 
82, 51 S. E. 132, it is said: "At com- 
mon law the wife and husband must 
join in a suit for damages for an in- 
jury to the person of the wife, the 
husband being a necessary party. 
Failure to join him in the action 
seems to have been cause for abate- 
ment; but the rule is wholly changed 
in our practice and under our statute. 
The husband is no longer a necessary 
party; in fact, his existence or nonex- 
istence is immaterial to the main- 
tainance of the action. If he exists, 
failure to join him is no cause for 
abatement.'* 

Same — In Equity. — "To obtain 
abatement or suspension of proceed- 
ings in equity in the nature of an 
abatement, on the ground of want of 
necessary parties, it must appear that 
the absent party has an interest in the 
subject matter of the suit that will be 
affected by the achievement of its ob- 
ject. It is not enough to show that he 
merely claims an interest. Facts must 
be disclosed from which the court can 
see that he has such an interest, if the 
statements of fact are true. Though 
iwant of necessary parties in equity may 
not constitute ground for abatement in : 
the common-law sense of the term, it 
operates to suspend or delay the suit, 
until the defect is cured, and the plea 
or answer setting it up for this pur- 
pose ought to be tested as to its suf- 
ficiency by the rules of pleading." 
Jackson v. Big Sandy, etc., R. Co., 63 
W. Va. 18, 25, 59 S. E. 749. 

Same — Detinue. — In an action of 
detinue, the defense that the party 
sued does not alone detain the prop- 
erty, but does so in conjunction with 
another party who it is claimed should 
have been made a party to the suit, 



can not be made under the general 
issue, but must be made by plea in 
abatement. National Fire Ins. Co. v, 
Catlin, 8 Va. Law Reg. 127. 

Same — ^Actions Ex Delicto. — Where 
the plaintiff in actions ex delicto im- 
properly omits parties who ought to 
be joined as defendants there can be 
no question that the proper remedy 
is exactly the same as in actions ex 
contractu. The regular and well es- 
tablished method of objecting to any 
action "for too few defendants," where 
the ground for the objection does not 
appear on the face of the declaration, 
is by a plea in abatement. The de« 
cisive question is whether the objec- 
tion is good, not whether the action 
is in contract or in tort. Ordinarily 
the objection is not good in actions of 
tort, but wherever it is good, regard- 
less of the form of the action, the 
only remedy known to our law is a 
plea in abatement. Matoaka Coal 
Corp. V. Clinch Valley Min. Corp., 121 
Va. 522, 93 S. E. 799. See post, 
EJECTMENT. 

Misjoinder. — If an improper plain- 
tiff be joined in an action of eject- 
ment, the court should order an abate- 
ment as to him and proceed in the 
names of the other plaintiffs as pro- 
vided by § 3258a of the Code (1904, 
§ 6102, Code 1919). Coles v. Jamer- 
son, 112 Va. 311, 71 S. E. 618. 

Same — Demurrer. — A misjoinder of 
parties c^ not be taken advantage of 
in this State by demurrer. The rem- 
edy provided by statute is to move 
the court to abate the suit or action 
as to the party improperly joined. 
Carlton v, Boudar, 118 Va. 521, 88 S. 

E. 174; Schmidt v. Wallinger, 125 Va. 
361, 99 S. E. 680. 

F. VARIANCE.* 

See ante, "In Geaeral," II, A. 

Plea in Abatement Only — ^Amend- 
ment. — Va. Code 1919, § 6103; Barnes 
Code, ch. 125, § 15. 



Abatement, Revival and Survival 



Variance between Writ and Deda- 
ration. — Sections 3259 and 3260 Code 
of 1904 (§§ 6103, 6105 Code 1919) do 
apply and were intended to control in 
just such cases as this. Chesapeake, 
etc., R. Co. V. Chapman, 115 Va. 32, 
78 S. E. 631. 

Variance between the writ. and dec- 
laration may, under §§ 3834, 3835, W. 
Va. Code 1906 (Barnes Code, ch. 125, 
§§ 14, 15) be taken advantage of by 
plea in abatement. Varney v. Hutch- 
inson Lumber Co., 64 W. Va. 417, 63 
S. E. 203. 

Advantage of a variance between 
the summons and the declaration in 
an action at law can not be taken 
otherwise than by a plea in abatement. 
Anderson v. Lewis, 64 W. Va. 297, 61 
S. E. 160; Varney v. Hutchinson 
Lumber, etc., Co., 64 W. Va. 417, 63 
S. E. 203; Chesapeake, etc., R. Co. v. 
Chapman, 115 Va. 32, 78 S. E. 631; 
First Nat. Bank v. Sanders, 77 W. Va. 
716, 88 S. E. 187. 

Misdescription of Plaintiff. — A plea 
to a bill in equity, filed by an adminis- 
trator with the will annexed, asserting 
variance between the summons and 
the bill, on the ground that the plain- 
tiff is described in the summons 
merely as administrator, is a plea in 
abatement. Burlew v. Smith, 68 W. 
Va. 458, 69 S. E. 908. 

G. DEFECTS IN SUMMONS AND 
PROCESS. 

See ante, "In General," II, A. 

Plea in Abatement Only — ^Amend- 
ment— Va. Code 1919, § 6103; Barnes 
Code, ch. 125, § 12. 

Return of Sheriff. — In the absence 
of any allegation of fraud or collusion 
on the part of the plaintiff, the return 
of the sheriff on process, sufficient on 
its face, can not be attacked, even 
though made by plea in abatement 
filed in due time in the suit in which 
the process issued. For reasons of 
public policy contradiction of such re- 



turns can not be made in any form, 
in the absence of any allegation of 
fraud or collusion. Sutherland v. Peo- 
ples Bank, 111 Va. 515, 69 S. E. 341. 

Return of Summons^Not Found. — 
In order that a suit or action may 
abate under the provisions of § 8, ch. 
125, Code, the return on the writ must 
show that the defendant is a nonresi- 
dent; the fact alone that he is "Not 
found" is not sufficient to abate the 
suit or action. Oil, etc., Supply Co. 
V. Gartlan, 58 W. Va. 267, 52 S. E. 
524. 

Where the original summons has 
been regularly returned by the sheriff 
"Not found" and alias writs have 
thereafter issued and been likewise re- 
turned and continuances have been en- 
tered at rules by the clerk regularly 
each month until the declaration is 
filed, the suit or action does not abate. 
Oil, etc., Supply Co. v. Gartlan, 58 W. 
Va. 267, 268, 52 S. E. 524. 

Wrong County. — Where an action 
is brought in one county and the sum- 
mons is directed to the sheriff of an- 
other, the summons will be quashed, 
and the action dismissed either on 
plea in abatement or motion to quash 
the summons and dismiss the action; 
no defendant residing in the county of 
the action. Netter-Oppenheimer & 
Co. V. Elfant, 63 W. Va. 99, 59 S. E. 
892. 

K. EXCEPTION FOR WANT OF 
JURISDICTION — PLEA TO 
JURISDICTION. 

When Exception Must Be by Plea 
in Abatement.— Va. Code 1919, § 6105, 
amended by Acts 1920, p. 28; Barnes 
Code, ch. 125, § 16. 

Where the declaration shows juris- 
diction, no exception for want of ju- 
risdiction can be taken except by plea 
in abatement. Mankin v. Jones, 63 W. 
Va. 373, 60 S. E. 248; Pennington v. 
Gillaspie, 63 W. Va. 541, 542, 61 S. E. 
416. 



Abatement, Revival and Survival 



"By a plea in abatement, denying 
the jurisdiction of the court, the de- 
fendant asserts that no judgement can 
be rendered against him, no matter 
what amount is due, though ever so 
uncontestable. The affidavits bear 
upon the amount, presupposing the 
court to have jurisdiction to render 
judgment; but a plea in abatement go- 
ing, to the jurisdiction of the court de- 
nies the power of the court to render 
any judgment of recovery." Netter- 
Oppenheimer & Co. v. Elfant, 63 W. 
Va. 99. 100, 69 S. E. 892. 

Dilatory Pleas Not Favored.— A 

plea to the jurisdiction on the ground 
that the defendant was a foreign cor- 
poration, did no business, and had no 
office or place of business, in the 
State, and had no agent in the State 
upon whom process could be legally 
served, is not within the reason for 
which the law discourages mere dila- 
tory pleas. The defense is not merely 
dilatory, and does not go merely to a 
question of venue within the State, 
but is of much more serious and far- 
reaching character. Bank v. Ash- 
worth, 122 Va. 170, 94 S. E. 469. 

Objections to Venue. — Where the 
proper parties are before a circuit 
court, then by virtue of the statute 
(section 3058 of the Code of 1904, § 
5890 Code 1919) and the common law 
rule on the subject, its territorial ju- 
risdiction over persons and property 
is co-extensive with the bounds of the 
whole State, except as limited by the 
venue statutes, sections 3214 and 3215, 
Code of 1904 (§§ 6049, 6050 Code 
1919); and but for such venue stat- 
utes, if a party defendant be once got- 
ten before such court, in a litigation 
over a subject matter of which the 
court has general jurisdiction, and 
which subject matter is actually be- 
fore the court by proper pleading and 
otherwise,, such party would have no 
privilege of demanding that the trial 
should be had in any other court of 



the State, it matters not where the 
cause of action may have arisen or 
where else in the State the defendant 
may reside. And since the defendant 
owes to statute law the venue privi- 
leges given by sections 3214 and 3215, 
Code of 1904, of limiting the said 
broad territorial jurisdiction of the 
court aforesaid, the statute law may 
attach a condition to the enjoyment of 
such privileges; and section 3260, 
Code of 1904 (§ 6105 Code 1919), has 
attached a condition thereto, namely, 
that such a privilege must be claimed 
by plea in abatement. Moore v, Nor- 
folk, etc., R. Co., 124 Va. 628, 98 S. E. 
635. 

Failure to Allege Domicile— Di- 
vorce. — Section 3260 of the Code of 
1904 (§ 6105, Code 1919) provides 
that when the declaration or bill 
shows on its face proper matter for 
the jurisdiction of the court no excep- 
tion for want of such jurisdiction shall 
be allowed unless taken by plea in 
abatement. But since no court in Vir- 
ginia has any jurisdiction of a divorce 
cause unless one of the parties has 
been domiciled in the State for at least 
one year before the commencement 
of the suit, a bill which does 
not even allege that one of the 
parties has been so domiciled, does 
not show on its face proper mat- 
ter for the jurisdiction of the court, 
and even if the bill had so al- 
leged, that would not have given a 
court jurisdiction unless the allegation 
was sustained by proof of the fact. 
Blankenship v. Blankenship, 125 Va. 
595, 100 S. E. 538. 

The defense of the absence of the 
jurisdictional fact that one of the par- 
ties has been domiciled in the State 
for a year preceding the commence- 
ment of the suit is not a matter of 
abatement of the suit, but is in its na- 
ture a bar to the suit. Hence section 
3260, Code of 1904 (§ 6105 Code 1919), 
is inapplicable, so that such defense 



8 



Abatement, Revival and Survival 



need not be pleaded in abatement, and 
may be pleaded in bar; and even if 
not pleaded in bar, the court may and 
should, for the reason of public policy, 
dismiss the suit at the hearing of the 
cause on the merits, unless the exist- 
ence of such fact affirmatively appears 
from the proof in the record. Such is 
the power and duty of the court in 
such cases, because it does not therein 
exercise a general jurisdiction, but 
only a limited statutory jurisdiction. 
Blankenship v, Blankenship, 125 Va. 
595, 100 S. E. 538. 

Cannot Be Pleaded by Attorney. — 

A plea to the jurisdiction by a natural 
person must be pleaded in proper per- 
son, and not by attorney, as appear- 
ance by attorney is regarded as plead- 
ing by leave of the court, and hence 
is an acknowledgment of its jurisdic- 
tion. Davidson v. Watts, 111 Va. 394, 
69 S. E. 328. 

KJ4. WITHDRAWAL FROM THE 
STATE. 

"Withdrawal from the state before 
suit brought, a fact not appearing on 
the face of the summons, or in the 
acceptance of service thereof, if other- 
wise available, would certainly not be 
good ground for quashing the sum- 
mons. That would be matter of abate- 
ment, pleadable, if good, by proper 
plea filed at rules. Sections 15, 16, 
chap. 125, Code 1906. Such a plea 
must not only be filed at rules, as re- 
quired by said section sixteen, but 
by § 39 of said chapter, it must be 
verified by affidavit." Smith Ins. 
Agency v. Hamilton Fire Ins. Co., 69 
W. Va. 129, 132, 71 S. E. 194. 

L. NONRESIDENCE OF DEFEND- 
ANT IN ATTACHMENT OR 
OTHER PROCEEDING. 

Action or Suit.— Va. Code 1919, § 
6080. 

M. ANOTHER SUIT OR PRO- 
CEEDING PENDING. 

A plea of another action pending is 



in abatement. Hinkle v. North River 
Ins. Co., 70 W. Va. 681, 682, 75 S. E. 
64. 

Mere Suggestion Not Sufficient. — A 
mere suggestion to the court by a de- 
fendant that his rights are involved in 
another pending cause will not alone 
suffice to prevent decree against him 
upon the bill taken for confessed. If 
he would rely upon the pendency, of 
the other cause as a defense to the 
bill, he must plead it in such a way 
as to show that it is a bar, of that the 
other cause has priority of jurisdic- 
tion. Katzenstein v. Prager, 67 W. 
Va. 343, 67 S. E. 792. 

Identity of Subject Matter and Re- 
lief. — "To sustain the plea of a former 
suit pending, it must appear that the 
subject matter and the relief sought in 
the second suit are the same as in the 
first suit." Comstock v. Droney Lum- 
ber Co., 69 W. Va. 100, 107, 71 S. E. 
255, citing Stafford v. Board, 56 W. 
Va. 670, 674, 49 S. E. 364; Foley v. 
Ruley, 43 W. Va. 513, 27 S. E. 268. 1 
Beach Mod. Eq. Pr, § 333. 

The jurisdiction of the state corpora- 
tion commission in regard to the ob- 
struction of a highway by a railroad 
at a crossing and the establishment of 
an undergrade crossing is not affected 
by the pendency of an injunction suit 
of the board of supervisors of the 
county against the railroad company 
when the proceeding was instituted 
before the corporation commission, 
where the parties to the two proceed- 
ings were not the same, nor were the 
objects to be accomplished identical. 
Especially is this true where the in- 
junction suit has been dismissed, as 
the supreme court of appeals will not 
turn the parties out of court and send 
them back to institute identical pro- 
ceedings in the same court, between 
the same parties, to try the same is- 
sues, upon identical evidence, simply 
because the injunction suit was pend- 
ing when this proceeding was insti- 



Abatement, Revival and Survival 



tuted. Southern R. Co. v. t Common- 
wealth, 124 Va. 36, 97 S. E. 343. 

Suit for Rescission of Deed. — Where 
a suit in equity for the rescission of a 
deed, the consideration of which was 
partly money and an agreement of 
maintenance, was instituted when 
there was already pending a suit to 
require performance of said agree- 
ment, it was held that the pending 
suit was ample to have administered 
all the relief necessary, and as the 
proof in the suit in equity was insuf- 
ficient to obtain a rescission of the 
deed, it was proper to dismiss it. 
Blose V. Blose. 118 Va. 16, 86 S. E. 
911. 

Cancellation of Deed and Eject- 
ment. — One in actual possession of 
land under superior title may, in 
equity, maintain a suit to cancel a 
deed as an alleged cloud upon his title, 
despite the pendency of an action of 
ejectment instituted by the adversary 
party. Moore v, Henderson, 87 W. 
Va. 699. 105 S. E. 903. 

In divorce proceedings a rule to 
show cause against a change of cus- 
tody of children having been awarded, 
and a petition for revision or altera- 
tion of the decree filed, in the cause, 
the rules and principles governing a 
plea of another suit pending have no 
application. Gates v. Gates, 87 W. Va. 
603, 105 S. E. 815. 

Suit in Law and in Equity. — "Since 
the jurisdiction of equity is limited 
to cases in which the law does 
not afford a complete and adequate 
remedy, it has been held by cases both 
at law and in equity that two causes, 
one at law and one in equity, are ex 
necessitate so dissimilar that the 
pendency of one can not be pleaded in 
abatement of the other/' Risher v. 
Wheeling Roofing, etc., Co., 57 W. 
Va. 149. 156, 49 S. E. 1016. See post, 
"In Chancery Causes — Bill of Re- 
vivor," VIII, C, 2, c. 

A creditor who holds a note se- 



cured both by personal endorsement 
and by a vendor's lien on land con- 
veyed to the principal debtor, may 
proceed at law on the note, and in 
equity for the enforcement of his lien, 
at the same time, until he obtains sat- 
isfaction in one forum or the other. 
Post V, Bailey & Co., 68 W. Va. 434, 
69 S. E. 910. 

An action at law by one partner to 
recover the amount of a firm debt due 
him under an agreement with the 
other partner was not prevented from 
being maintained by the pendency of 
a suit in equity of long standing and 
which had never been determined. 
Nester v, Bunns, 85 W. Va. 568, 10^ 
S. E. 227. 

Same — Injunction Suit. — After the 
employer in a contract, for the cutting 
of timber on his land, has given notice 
of his desire to discontinue or term- 
inate further performance or execution 
thereof on the part of the employee 
and enforced such right by an injunc- 
tion, the employee has a right of action 
on his contract for breach thereof, 
provided he is not in fault himself, 
and the injunction constitutes no bar 
thereto. In such case, the pendency 
of the injunction suit can not be 
pleaded either in bar or abatement of 
the action. Comstock v. Droney Lum- 
ber Co., 69 W. Va. 100, 71 S. E. 255. 

Suits in DifiFerent States.— The 
pendency of a suit for partition in the 
courts of the state where land is situ- 
ated, and a decree of partition therein, 
reversed on appeal by an appellate 
court, and remanded for further pro- 
ceedings, will not estop or preclude 
the grantor in one of the deeds in- 
volved in said petition suit from main- 
taining a suit in the courts of another 
|tate where the deed was made and 
where the parties thereto reside, to 
obtain a decree requiring a reconvey- 
ance of the land to him upon the 
ground of fraud and deceit practiced 
by the grantee in obtaining such deed. 



10 



Abatement, Revivai, and Survival 



unless this question was fully pre- 
sented by pleadings and proof, and 
actually adjudicated in such partition 
suit. Woodcock v. Barrick, 79 W. 
Va. 449, 91 S. E. 396. 

While the pendency of a foreign at- 
tachment, attended by garnishment, 
will not abate an action in another 
court subsequently brought for the 
same debt, it will, when properly 
pleaded, effect a s;tay or postpone- 
ment of the trial of the second pro- 
ceeding to await the determination of 
the foreign attachment. Whan v. 
Hope Natural Gas Co., 81 W. Va. 
338, 94 S. E. 366. 

P. TIME OF BRINGING ACTION. 

Prematurity of Action.— The de- 
fense that a suit upon a promissory 
note is prematurely brought, for the 
reason that a condition, upon the per- 
formance of which the right to sue de- 
pends, has not been performed, may 
be made by a plea in abatement, even 
though advantage might be taken 
thereof in other ways. Michael v. 
Donohue, 86 W. Va., 34, 102 S. E. 
803. 

III. FORM, SUFFICIENCY AND 
CONSTRUCTION OF PLEA. 

See post, "Pleas in Abatement in 
Criminal Cases," VII. 

^4A. IN GENERAL. 

"To » determine the real character of 
the pleading it is not necessary to en- 
ter upon a discussion of the features 
distinguishing a plea in bar from a 
plea in abatement, the decisive ques- 
tion to be determined being the effect 
upon the right of the plaintiffs to re- 
cover and whether such defensive mat- 
ter is provable under the general issue." 
Sutherland v. Guthrie, 82 W. Va. 41», 
420, 96 S. E. 61. 

Facts Provable under General Is- 
sue—Striking Out Plea. — As the facts 
averred in a special plea, denominated 



by the pl^der a plea in abatement of 
the action, assumpsit, tend to show an 
assignment by the plaintiff of the claim 
sued on prior to the commencement of 
the action and are provable under the 
general issue in bar of the right to 
prosecute the action, the trial court did 
not err in sustaining the motion to 
strike the plea from the record. Suth- 
erland r. Guthrie, 82^ W. Va. 419, 96 S. 
E. 61. 

Plea of Corporation Must Be by At- 
torney. — Where a defendant corpora- 
tion filed a plea of abatement in its 
own name, to the jurisdiction of the 
court, the plea was overruled because 
it is requisite that a corporation must 
file such plea through its attorney. Cul- 
pepcr Nat. Bank v. Tidewater Improve. 
Co., 119 Va. T3, 89 S. E. 118. 

It was objected to a plea to the ju- 
risdiction that it was not good inform 
because the defendant corporation ap- 
peared in person instead of by attor- 
ney. The commencement of the plea 
was, "Defendant, Bank of Bristol, Inc., 
for special plea * * * comes and 
says," thus complying with the form 
expressly authorized by statute for the 
commencement of all pleas, Code 1904, 
§ 3269 (§ 6113, Code 1919), and the 
signature of the plea was, "Bank of 
Bristol, Inc., By A. B. Wbiteaker, at- 
torney." Held: That, the objection 
was not well founded in point of fact. 
Bank v. Ashworth, 122 Va. 170, 94 S. 
E. 469. 

Interest of Absent Party. — An an- 
swer to a bill, seeking abatement for 
want of necessary parties, which faiils 
to aver facts, showing an interest, on 
the part of the absent party, in the sub- 
ject matter of the bill, that will be af- 
fected by the achievement of the ob- 
ject of the suit, is insufficient for the 
purpose. Jackson v. Big Sandy, etc., 
R. Co., 63 W. Va. 18, 59 S. E. 749. 

A. MUST BE CERTAIN. 

See post, "Pleas in Abatement in 
Criminal Cases," VII. 



Abatement, Revival and Survival 



11 



Ordinarily, a plea in abatement must 
set forth, wJth strictness and precision, 
such matter as will necessarily prevent 
further procedure in the case, if found 
to be true in point of fact. State v, Mc- 
intosh, 83 W. Va. 483, 96 S. |E. 79. 

'Tleas in abatement must be certain 
to every intent. They must set forth 
specifically the grounds of objection. 
They are not favored and are strictly 
construed. Hence, they must possess 
the highest degree of certainty in every 
particular." State v, Taylor, 57 W. Va. 
228, 233, 50 S. E. 347; State v. McClel- 
land, 85 W. Va. 289, 101 S. E. 472. 

"In order to avail himself of a legal 
principle for an abatement or any pur- 
pose, a party must set forth sufficient 
facts to bring himself within that prin- 
ciple." Jackson v. Big Sandy, etc., R. 
Co., 63 W. Va. 18, 25, 59 S. E. 749. 

A plea in abatement which avers facts 
which, if true, may or may not consti- 
tute a legal defense, depending entirely 
upon an ulterior fact not averred, is 
bad for uncertainty. Risher v. Wheel- 
ing Roofing, etc., Co., 57 W. Va. 149, 
156, 49 S. E. 1016. 

Another Suit Pending. — In an action 
at law a plea in abatement, of a former 
suit pending, which does not aver 
whether such former suit is pending at 
law or in equity, is bad for uncertainty. 
Risher v. Wheeling Roofing, etc., Co., 
57 W. Va. 149, 49 S. E. 1016. 

B. MUST BE VERIFIED. 

Va. Code 1919, § 6124; Barnes Code, 
rh. 125, §§ 16, 39; Burlew v. Smith, 68 
W. Va. 458, 460, 69 S. E. 908; Smith 
Ins. Agency v. Hamilton Fire Ins. Co., 
69 W. Va. 139, 132, 71 S. E. 194. 

Counter Affidavit — Barnes Code, ch. 
125, § 46. 

Though ' a plaintiff in an action 
of assumpsit has filed with his dec- 
laration an affidavit of the amount 
due him, the defendant may file 
a plea in abatement to the jurisdic- 
tion of the court without filing the 



counter affidavit required of a defend- 
ant by West Vrirginia Code, 1899, c. 
135, § 46 (Barnes Code, p. 1116). Net- 
ter-Oppenheimer & Co. v, Elfant, 63 
W. Va. 99, 59 S. E. 892. 

D. DUPLICITY. 

Where a plea in abatement presents 
two distinct and sufficient defenses, 
cither of which, if true, would necessi- 
tate a finding on the issue in favor of 
the pleader, the plea is bad for duplic- 
ity. Fitzgerald v. Southern Farm 
Agency, 122 Va. 264, 94 S. E. 761; Dea- 
trick V. State Life Ins. Co., 107 Va. 602, 
610, 59 S. E. 489. 

A plea in abatement set up as a de- 
fense that neither the cause of action, 
nor any part of it, arose within the ju- 
risdiction of the trial court, and also 
that at the time of the service of the 
writ upon the defendant, defendant 
was within the jurisdiction solely for 
the purpose of defending another suit 
brought against him by the plaintiff. 
Held: That the plea was bad for du- 
plicity. Fitzgerald v. Southern Farm 
Agency, 122 Va. 264, 94 S. E. 761. 

Every Ground of Jurisdiction Must 
Be Negatived. — To constitute a suffi- 
cient plea to the jurisdiction of the 
gourt, every ground of jurisdiction 
enumerated in the statute must be neg- 
atived in the plea; and a plea which 
does this is not bad for duplicity. 
Deatrick v. State Life Ins. Co., 107 Va. 
602, 615, 59 S. E. 489. 

E. MUST GIVE PLAINTIFF A 
BETTER WRIT. 

A plea in abatement must give plain- " 
tiff a better writ, must show a more 
proper or sufficient jurisdiction in some 
other court of the state wherein the 
action is brought. Deatrick v. State 
Life Ins. Co., 107 Va. 602, 611, 59 S. 
E. 489. 

It is true, as a general rule, that a 
plea in abatement must show a more 
proper or sufficient jurisdiction in some 
other court of the state wherein the 



12 



Abatement, Revival and Survival 



action is brought. But this require- 
ment can not avail where the plea 
shows a condition of facts under which 
no court in the State has jurisdiction. 
Bank v. Ashworth, 122 Va. 170, 94 S. 
E. 469; Deatrick v. State Life Ins. Co., 
107 Va. 602, 615, 59 S. E. 489. 

Better Writ Given, — In an action 
of tort against a railroad company, a 
plea to the jurisdiction is good which 
avers that the cause of action did not 
nor did any part thereof arise in the 
county in which the action is brought, 
and that, at the time of the issuing of 
the writ in the cause, the defendant did 
not have its principal office in said 
county, and that it had no president or 
other chief officer residing in said 
county, and which further states in 
what county the cause of action, if any, 
did arise, and in what city its princi- 
pal office was at the time of issuing the 
writ and still is. The venue of all ac- 
tions in Virginia, whether local or 
transitory, is fixed by statute, and the 
statute declares where actions against 
corporations as well as individuals may 
be brought. Virginia, etc., R. Co. v. 
Hollingsworth, 107 Va. 359, 367, 58 S. 
E. 572. 

I. CONSTRUCTION OF PLEA. 

Pleas in abatement are strictly con*- 
strued. State v. Taylor, 57 W. Va. 
228, 233, 50 S. E. 247; State v, McClel- 
land. 85 W. Va. 289, 101 S. E. 472. 

Relaxation of Technical Rules. — To 
construe an objection to a plea to the 
jurisdiction as a motion to strike out, 
would be to relax one rule of practice, 
highly technical it is true, merely to 
give the other party the benefit of an- 
other rule none the less technical, and 
that too to defeat a substantial right. 
Bank v. Ashworth, 122 Va. 170, 94 S. E. 
469. 

IV. TIME AND EFFECT OF !FIL- 
ING PLEAS IN ABATE- 
MENT. 

See post, "Pleas in Abatement in 
Criminal Cases," VII. 



Not Received after Demurrer, Plea 
in Bar or Answer.— Va. Code 1919, § 
6105, amended by Acts 1920, p. 28. 

No plea in abatement, shall be re- 
ceived after the defendant has de- 
murred, pleaded in bar or answered to 
the declaration or bill, nor after a de- 
cree nisi or conditional judgment at 
rules. Chesapeake, etc., R. Co. v. 
Chapman, 115 Va. 32, 38, 78 S. E. 631. 

No Plea in Abatement Shall Be Re- 
ceived after Rules Next Succeeding 
the Rules at Which Declaration or Bill 
Is Filed.--Va. Code 1919, § 6105, as 
amended by Acts 1920, p. 28. 

Filed with Pleas in Bar.— Va. Code 
1919, § €107. 

For Non-Joinder. — A plea in abate- 
ment for non-joinder of parties, under 
§ 3260 of the Va. Code of 1904 (§ 6105, 
Code 1919), can not be received after 
the defendant has pleaded in bar. Ma- 
toaka Coal Corp. v. Clinch Valley 
Min. Corp., 121 Va. 522, 93 S. E. 799. 

After Demurrer. — A plea in abate- 
ment tendered after demurrer, is barred 
by time. Burlew v. Smith, 68 W. Va. 
458, 460, 69 S. E. 908, citing Flesher 
V. Hasler, 29 W. Va. 404, 1 S. E. 580; 
Robrecht v. Marling, 29 W. Va. 765, 2 
S. E. 827; Rutter & Co. v. Sullivan, 25 
W. Va. 427. 

After General Appearance. — A plea 
to a bill in equity, filed by an adminis- 
trator with the will annexed, assert- 
ing variance between the summons and 
the bill, on the ground that the plain- 
tiff is described in the summons merely 
as administrator, is a plea in abate- 
ment, and if tendered after a general 
appearance, may properly be rejected 
or disregarded in the decree. Burlew 
V. Smith, 68 W. Va. 458, 69 S. E. 908. 

After Entry of Conditional Judg- 
ment. — In an action for personal in- 
juries defendant railroad was properly 
served with process uder §§ 3225 and 
3227, Va. Code of 1904. The company 
failed to appear on the return day, and 
plaintiff having filed his declaration, a 



Abatement, Revival and Survival 



13 



conditional judgment was entered as to 
defendant in accordance with the stat- 
ute (§ 3284, Code of 1904, § 6131, Code 
1919), and, at the subsequent rules, the 
company continuing in default, judg- 
ment was entered against it. There- 
after, at term, the company appeared 
specially^ and moved to dismiss the 
action on the ground that the court 
bad no jurisdiction over the cause, be- 
cause it appeared upon the face of the 
declaration filed that the entire cause 
of action arose without the territorial 
jurisdiction of the court. Held: That 
the motion of the company to dismiss 
the case was, in truth, an objection di- 
rected merely against the venue of the 
action, and came in the wrong form 
and too late under § 3260 of the Code 
of 1904, which provides that such an 
objection can not be allowed (§ 6105, 
Code 1919), unless taken by plea in 
abatement, which could not be filed at 
the stage of the proceeding at which 
the motion was made. Moore v, Nor- 
folk, etc., IR. Co., 124 Va. 628, 98 S. E. 
635. 

"Under our statute, § 3260 of the 
Code (§ 6105, Code 1919), all pleas of 
abatement must be filed before there 
is a conditional judgment at rules." 
Southern Exp. Co. v. Jacobs, 109 Va. 
27, 30, 63 S. E. 17. 

After Office Judgment— A variance 
between writ and declaration may, un- 
der §§ 3834, 3835, Code 1906, be taken 
advantage of by plea in abatement filed 
at the proper tame; but such plea, 
though tendered at the same term of 
court at which the judgment becomes 
final, whether before or after an order 
for an inquiry of damages has been 
executed, not being a plea to issue, 
can not be received to set aside an 
office judgment. Varney v. Hutchinson 
Lumber, etc., Co., 64 W. Va. 417, 63 
S. E. 203; Greenbrier Valley Bank v. 
Bair, 71 W. Va. 684, 690, 77 S. E. 274. 

Prevention of Entry of Office Judg- 
ment^-A plea in abatement, or any 
plea filed at the first rule day, or which 



may now be filed at the second rule 
day, after default at the first, or ap- 
pearance and rule to plead, will pre- 
vent the entry of an office judgment. 
Greenbrier Valley Bank v. Bair, 71 W. 
Va. 684, 690, 77 S. E. 274. 

Statutory Provision^To What Pleas 
Applicablo^-Section 16, ch. 125, parnes 
Code, limiting the time for filing pleas in 
abatement, applies only to pleas to the 
jurisdiction of the court, where the dec- 
laration or bill shows on its face proper 
matters for the court's jurisdiction. It 
does not apply to a plea of ne unques 
administrator, which may be filed 
within the same time as a plea to the 
general issue. Taylor v. Virginia-Po- 
cahontas Coal Co., 78 W. Va. 455, 88 
S. E. 1070. / 

When Plea Becomes Part of Record. 

— Where defendant in due time filed its 
plea to the jurisdiction, and it was ac- 
cepted and filed by the clerk at rules in 
the exercise of a ministrial and manda- 
tory duty, it became thereby as much 
a part of the record as the declaration 
itself. Bank r. Ashworth, 122 Va. 170, 
94 S. E. 469. 

V. DEMURRER TO PLEA IN 

ABATEMENT. 

Va. Code, § 6118. 

Criminal {Prosecution. — To a plea in 
abatement filed by a defendant in a 
criminal prosecution, the attorney for 
the commonwealth (may demur or reply, 
but he has no right to do both. If, after 
his demurrer is overruled, he repines to 
the plea, the demurrer will be treated as 
waived or withdrawn, although the 
prisoner objected to the filing of the 
replication and excepted to the ruling 
of the court overruling his objection. 
Mullins V, Commonwealth, 115 Va. 945, 
79 S. E. 324. 

VI. PLEAS IN) ABATEMENT IN 

EJECTMENT. 

See post, EJECTMENT. 



14 



Abatement, Revival and Survival 



VIL PLEAS IN ABATEMENT IN 
CRIMINAL CASES. 

See ante, generally, "Form, Suffi- 
ciency and Construction of Plea," III; 
"Demurrer to Plea in Abatement," V. 

A. NECESSITY AND : GROUNDS 
FOR PLEA. 

1. Legality of Evidence. 

The question of the legality of the 
evidence upon which an indictment is 
found can only be presented by plea 
in abatement, upon which an issue of 
fact as to the competency and suffi- 
ciency thereof may be tried. State v. 
Clark, 64 VV. Va. 625, 63 S. E. 402. 

2. Illegal Constitution of Grand Jury. 

See post, GRAND JURY. 

B. FORM AND SUFFICIENCY OF 

PLEA. 

1. Must Be Certain. 

A plea in abatement in a criminal 
case must be certain to every intent. 
State V. Taylor, 57 W. Va. 228, 60 S. 
E. 247; State v. McClelland, 85 W. Va. 
289, 101 S. E. 472. 

Improper Constitution of Grand Jury. 

— If the irregularity, relied upon as 
matter of abatement, relates to the con- 
stitution or organization of the grand 
jury, the plea must show in what the 
irregularity consists, otherwise it will 
be lacking lin the element of certainty. 
State V, Taylor, 57 W. Va. 228, 50 S. 
E. 247. 

A plea in abatement, charging gen- 
erally that no writ of venire facias was 
issued and served within the time, and 
in the manner prescribed by the stat- 
ute (referring to them), and that the 
body of men who had professed to be 
the grand jury which had found the 
indictment did not constitute a legal 
grand jury, is insufficient. State v. 
Taylor, 57 W. Va. 228, 50 S. E. 247. 

Same — Plea Based on Discrimination 
in Selecting Grand Jury. — A plea 
in abatement to an indictment 



founded upon discrimination against 
the prisoner, in the selection of 
the grand jury by whom the indictment 
was found, on account of his race and 
color, he being a person of color and 
of African descent, which does not pos- 
itively and unequivocally aver the ex- 
istence in the county in which the in- 
dictment was found, of persons of his 
race and color fully qualified for grand 
jury service, is dnsuffioient and may 
properly be rejected. State r. McClel- 
land, 85 W. Va. 289, 101 S. E. 472. 

The clause "Who are competent and 
qualified to serve upon a grand jury," 
found in such a plea and preceded by 
averments that the persons of whom it 
is predicated are colored and African 
by descent and are citizens and tax- 
payers of the county and constitute a 
large percentage 'of the citizens and 
tax-payers thereof, is uncertain and 
equivocal as to whether such persons 
are qualified for grand jury service, be- 
cause it may be regarded as the aver- 
ment of a mere conclusion founded 
upon the insufficient facts antecedently 
stated; and the plea, containing it and 
no other averment of qualification for 
such service, does not comply with the 
requirement of the rule of pleading, as 
to certainty and definiteness. State v. 
McClelland, 85 W. Va. 289, 101 S. E. 
472. 

A plea by a {Person charged with the 
same ofiFense in two successive indict- 
ments, setting up, as matter abate- 
ment, continuances of the first indict- 
ment after the finding of the second, 
which, under the provisions of § 25 of 
ch. 159 of the Code, would entitle him 
to a discharge from prosecution for the 
ofiFense, if the latter had not been re- 
turned, and making no disclosure of 
the proceedings on the second indict- 
ment, is insufficient for lack of cer- 
tainty and definiteness. State v. Mc- 
intosh, 82 W. Va. 483, 96 S. E. 79. 

An essential averment of such plea is 
the concurrence of enough unexcused 
continuances of both indictments, after 



Abatement, Revivai. and Survival 



15 



the finding of the second, to make» 
when added to any of the first, that 
may have occurred before the finding 
of the second the requisite number. 
State V. Mcintosh, 82 W. Va. 483, 96 S. 
E. 79. 

In the case of two such indictments, 
the accused is not entitled to count un- 
der said statute, any term at which he 
procured a continuance of either indict- 
ment on his own motion, or otherwise 
prevented a trial thereof. State v. Mc- 
intosh, 82 W. Va. 483, 96 S. E. 79. 

2. Sufficiency in General. 

A paper filed in a criminal case in 
time for a plea in abatement, contain- 
ing the allegations necessary to raise 
the question of the validity of an in- 
dictment because of the improper con- 
stitution of the grand jury, and prop- 
erly verified, will be treated as a plea 
in abatement, notwithstanding the 
pleader designates it a motion to quash. 
State V. Young, 82 W. Va. 714, 97 S. 
E. 134; State v. Cook, 81 W. Va. 686, 
95 S. E. 792. 

A plea in abatement in a criminal 
case charging that the defendant be- 
longs to the negro race, that there are 
a large number oi men of his race 
within the county qualified for grand 
jury service, that none such were upon 
the grand jury which found the indict- 
ment against him, that the list from 
which the grand jury which indicted 
him was drawn contained the name of 
no person of the negro race, and that 
the county commissioners in making 
such list excluded all persons of the 
negro race therefrom solely because of 
their race or color, sufficiently charges 
that he has been denied the equal pro- 
tection of the laws in violation of the 
Fourteenth Amendment to the Consti- 
tution of the United States (p. 717). 
State V. Young, 82 W. Va. 714, 97 S. E. 
134. 

C. TIME FOR FILING PLEAS IN 
ABATEMENT. 
Va. Code 1919, § 4907; Barnes Code, 
ch. 125, § 16. 



D. WAIVER .OF RIGHT TO 
PLEAD. I 

In a criminal case, the defendant 
waives his right to plead any matter 
in abatement by pleading in bar, but 
the court has discretion to allow the 
plea in bar to be withdrawn and the 
dilatory plea entered. State v, Tay- 
lor, 57 W. Va. 228, 50 S. E. 247. 

If, in a criminal case, the plea of 
not guilty is withdrawn by leave of the 
court, the plea in abatement must be 
received if sufficient. State v, Taylor, 
57 W. Va. 228, 50 S. E. 247. 

E. TRIAL OF PLEAS IN ABATE- 

MENT. 

Tried First— Va. Code 1919, § 4907; 
Barnes Code, ch. 125, § ^i. 

VIII. DEATH OR OTHER DISA- 
BILITY. 

A. SURVIVAL OF ACTIONS. 

1. In GeneraL 

Va. Code 1919, § 5790; Barnes' Code, 
ch. 127, § 2. 

"The question whether an action sur- 
vives depends upon the nature of the 
action and not upon the form of it. It 
has been held that the line of demar- 
cation at common law, separating those 
actions which survive from those which 
do not, is that in the first the wrong 
complained of affects primarily and 
principally property and property 
rights, and the injuries to the person 
are merely incidental, while in the lat- 
ter the injury complained of is to the 
person, and the property and right of 
property affected are merely incidental. 
At common law the rule was a general 
one that actions ex contractu survived 
the death of a party to an action, but 
where the damage resulting was to the 
person the rule was otherwise." Win- 
ston V. Gordon, 115 Va. 899, 918, 80 
S. E. 756, quoting 1 Cyc. 49. 

Tort Actions in General — Tort ac- 
tions for wrong to property, real or 



16 



Abatement, Revivai. and Survivai. 



personal, or which grow out of breach 
of contract, but not for wrongrs done 
to the person or reputation, or any 
purely personal wrong, apart from 
property or contract survive to or 
against the personal representative. An 
action for breach of promise of mar- 
riage does not survive at common law, 
nor under the Virg^inia statute. Wins- 
ton V, Gordon, 115 Va. 899, 916, 80 S. 
E. 756. 

"Generally, tort actions for wrong to 
property rights survive, while actions 
for wrongs done to the person abate, 
except, among others, that the right to 
maintain actions for statutory penal- 
ties dies with the person." Kinney v. 
West Union, 79 W. Va. 463, 466, 91 S. 
E. 260. 

Causes of action ex delicto, that sur- 
Vvive, and may be prosecuted by or 
against the personal representative of 
a decedent, primarily and generally arc 
such as affect property or property 
rights, the wrong to the person being 
merely incidental. Kinney v. West 
Union, 79 W. Va. 463, 466, 91 S. E. 
260. 

An action for obtttmction to the free 
ii8e and enjoyment of a public street 
in Its original condition survives to the 
personal representative. Kinney v. 
West. Union, 79 W. Va. 463, 466, 91 S. 
E. 260. 

Assignability and survivability are 
convertible terms. If, therefore, the 
party in whom a cause of action exists 
can not by contract, as by assignment, 
place it beyond his control, at will not 
survive. Woodford v, McDaniels, 73 
W. Va. 736, 739, 81 S. E. 544. 

Statutory Provisions. — A cause of ac- 
tion ex delicto which abated by death 
•and did not survive, at common law, 
to or against the personal representa- 
tive, does not survive by virtue of § 2, 
ch. '127, Code 1913 (Barnes Code, p. 
1122). Such section prescribes only the 
mode of procedure for the revival of 
-actions which, at common law or by 
-virtue of other statutory provisions, 
■survive to or against the personal rep- 



resentative. It does not create a new 
cause, or gave a new right, of action 
which did not exist before. Woodford 
z. McDaniels, 73 W. Va. 736, 742, 
83 S. E. 544. 

5. Trespass. 

Application of Sutate.— Section 20, 
ch. 85, Code, which provides that "an 
action of trespass or trespass on the 
case may be maintained by or against 
a personal representative for the taking 
or carrying away of any goods, or for 
the waste or destruction of or damage 
to any estate of or by bis decedent,'* 
does not authorize recovery of indirect 
or consequential damages resulting 
from the wrongful use of judicial pro- 
ceedings, whereby the person injured 
was deprived merely of the use and 
benefit of property pending a suit sub- 
sequently dismissed on appeal for want 
of jurisdiction. Woodford v, McDan- 
iels, 73 W. Va. 736, 742, 81 S. E. 544. 

6. Real Actions. 

^a. In General. 

Suks to Sell Realty of Incompetent. 

— Va. Code 1919, § 5336. 
Action to Establish a Trust in Land. 

— A suit by the life tenant and remain- 
dermen to establish a trust in land, 
does not abate on the death of the life 
tenant. Taylor v. Taylor, 76 W. Va. 
469, 85 S. E. 652. 

b. Ejectment. 

Where Right of Plainti£F in Eject- 
ment Expires before Trial— What 
Judgment Entered.— Va. Code 1919, § 
5479; Barnes Code, ch. 90, 5 28. 

Action in Ejectment by Husband 
and Wile. — "It does not appear when 
the husband died, but upon his death 
the cause of action survived to his wife 
Code 1887, § 3306 (Code 1919, § 6165); 
1 Min. Inst. •(4th ed.). McMurray v. 
Dixon, 105 Va. 605, 608, 54 S. E. 481. 
16. Action for Personal Injuries. 

See ante, "In General," VIII, A, 1. 

Death of Plaintiff.— Va. Code 1919, 
§ 5790, amended by Acts 1920, p. 27; 
Barnes Code, ch. 127, §§ 1, 2. 



Abatement, Revival and Survival 



17 



Employors' Liability Act—Right of 
Action.— At common law the right of 
action for an injury to the person is 
extinguished by the death of the in- 
jured party. The purpose of the act 
of Congress approved April 22, as 
amended by the act of Congress ap- 
proved April 5, 1910, commonly known 
as the "Employers' Liability Law," is 
to give a right of action for the benefit 
of certain relatives, dependent upon the 
employee wrongfully killed, for the pe- 
cuniary loss to them resulting from 
his death, and also to give an employee, 
wrongfully injured, a right of action 
therefor, which shall survive, in case of 
his death, to the same beneficiariyes. 
Chafin V. Norfolk, etc., R. Co., 80 W. 
Va. 703, 93 S. E. 822. 

17. MaHcious Ptosecutioii. 

A cause of action for malicious pros- 
ecution does not, under the common 
law or by statute, survive against the 
personal representative, unless as a re- 
sult thereof property is acquired by the 
wrongdoer which enures to his benefit 
or enhances the value of the estate in 
the hands of his personal representa- 
tive. Woodford v^ McDaniels, 73 W. 
Va. 736, 739, 81 S. E. 544. 

18. Action for Wrongful Death. 

See post, DEATH BY WRONG- 
FUL ACT. 

B. DEATH .OR DISABILITY OF 
PARTIES PLAINTIFF OR DE- 
FENDANT. 

1. In G^end. 

See ante, "Action for Personal Inju- 
ries," VIII, A. 16; post, "Revivor of! 
Suits and Actions," VHI, C. 

Dower and Damages against Heirs 
and Alienees.— Va. Code 1919, § 5127. 

State.— Va. Code 1919, § 2512. 

Parties Exceeding Thirty. — ^Va. Code 
1919, § 6173; Barnes Code, ch. 127, § 9. 

At common law a suit, whether 
founded on contract or tort, abated by 
the death of a sole plaintiff or of a sole 
defendant before trial or verdict, and 
could proceed no further. Woodford v. 



McDaniels, 73 W. Va. 736, 737, 81 S. 
E. 544. 

2. Parties Plaintiff— In Whose Name 
Revived. 

a. Specific Instances. 

By virtue of the statute (Code 1887, 
§§ 2902-3; Code 1919, ■§§ 5786, 5789), an 
action brought by deceased in his life- 
time could be revived, upon the sug- 
gestion of his death, in the name of his 
personal representative. Brammer v. 
Norfolk, etc., R. Co., 107 Va. 206, 209, 
57 S. E. 593. 

8. Parties Defendant — ^Against Whom 
Revived, etc. 

a. Specific Instances. 

Mandamus Proceedings— Erection or 
Repair of Jail or Courthouse. — Va. 
Code 1919, § 2866. 

Application for New Charter — ^Pro- 
ceedings by Creditors. — Va. Code 1919, 
§ 3811. 

Dissolution of Corporation. — ^Va. 
Code 1919, § 3815; Barnes Code, ch. 
754, § 739. 

Death by Wrongful Act. — See post, 
DEATH BY WRONGFUL ACT. 

If a former owner of land, in whose 
name it is sold for taxes, has parted 
with title before the sale, and is made 
a party to a suit to avoid the tax -deed, 
and dies pending the suit, it is proper 
to revive the suit against his admin- 
istrators but it is not necessary to re- 
vive the suit against his heirs. James 
V, Piggott, 70 W. Va. 435, 440, 74 S. E. 
667. 

b. Death of One or More of Several 

Defendants. 

At common law, a total abatement of 
the action was occasioned by the death 
of one of two or more jaint defendants. 
This result is avoided by the West 
Virginia statute. Code, ch. 1«7, § 2, 
saying the action may proceed against 
the others 5f the cause of suit survives 
against them. Means v, Barnes, 72 W. 
Va. 512, 514, 78 S. E. 665. 

Where pending a suit one of three 
trustees, made defendants, dies, the 



—2 



18 



Abatement, Revivai. and Survival 



suit does not abate, and a decree with- 
out the presence of the substituted 
trustee, when the death of the one dy- 
ing has not been noted or brought to 
the attention of the lower court, will 
not be reversed for error in omissdon 
to revive the case against the substi- 
tuted trustee. McLfanahan v. Mills, 73 
W. Va. 246, 253, 80 S. E. 351. 

d. Where Party Whose Powers Cease 
Is Defendant. 

Va. Code 1919, § 6170; Barnes Code, 
ch. 127, §§ 1, 2. 

5. Death Pending Appeal 
See post, APPEAL AND ERROR. 

7. Sugg'estion of Death. 

Va. Code 1919, § 5790, amended by 
Acts 1920, p. 27; Barnes Code, ch. 127, 
§§ 4, 6, 7; Brammer v. Norfolk, etc., 
R. Co., 107 Va. 206, 57 S. E. 593. 

When in a pending creditors* suit 
the death of a non-resident defendant 
and creditor has been suggested, and 
the suit has been revived against 'his 
administrator c. t. a., regularly ap- 
pointed by the county court, and the 
cause has been thereafter regularly pro- 
ceeded with to final decree in favor of 
the creditors, including the estate of 
such decedent, the decree is binding 
upon such estate, and the petition of 
the residuary legatee, and executor of 
the will of such non resident creditor, 
appointed and qualified in the state of 
his domicile, but who has not qualified 
as such fiduciary in this state, to set 
aside or modify such decree, without 
showing good ground therefor, is prop- 
erly rejected. Kelly v. Wellsburg, etc., 
R. Co., 80 W. Va. 306, 92 S. E. 433. 

C. REVIVOR OF SUITS AND AC- 
TIONS. 

# 

^. In GieneraL 

See ante, "Parties Defendant — 
Against Whom Revived," etc., VIII, 
B, 3. 

Where Death or Other Equivalent 
Event Occurs as to Any of Several 



Plaintiffs or Defendants in a Suit, the 
Cause of Which Survives, How Suit 
to Proceed; How on Deal^ of a Joint 
Defendant—Va. Code 1919, § 6165; 
Barnes W. Va. Code, p. 1122, ch. 127, 

§ 2. 

V/i. Time for Revival, etc. 

Va. Code 1919, § 6171; Barnes Code, 
ch. 127, §§ 2, 4. 

Not Affecting the Right to Recover. 
— Va. Code 1919, § 5826; Barnes Code, 
ch. 104, § 19. 

Though three terms of court have 
passed without notice being taken on 
the record of a writ of scire facias to 
revive a cause, revival not being lim- 
ited or confined to the particular term 
to which the writ is returnable, it may 
be entered at a subsequent term, and 
the court does not lose jurdsdiction to 
proceed according to the writ. David- 
son V. Kunst, 72 W. Va. 116, 118, 77 S. 
E. 648. 

If after waiting for more than a year 
after service of a writ of scire facias, 
plaintiff, in the absence of defendant, 
has the case revived, a jury immedi- 
ately called, and judgment entered, the 
court on motion of the new party at 
the same term should set aside the ver- 
dict and judgment and continue the 
case. The right to such continuance 
given by § 4, chapter 127, Code 1906, is 
absolute. Davidson v. JCunst, 72 W. 
Va. 116, 119, 77 S. E. 548. 

IYa. Who May Revive. 

See ante, "Parties Plaintiff — In 
Whose Name Revived," VIII, i:, 2. 

Upon the death of an individual, all 
rights of action which survive pass to 
his personal representative, and are 
to be asserted by him. Saunders v. 
Bank, 113 Va. 656, 664, 75 S. E. 94. See 
post, EXECUTORS AND ADMIN- 
ISTRATORS. 

2. Modes of Revival, Etc. 

^a. In GeneraL 

Marriage of Female Plaintiff or De- 
fendant.— Va. Code 1919, § 6166. Sec 



Abatement, Revivai. and Survival 



19 



ante, "Capacity in Which Party Sues 
or Is Sued," 11, C. 

Section ft, ch. 127, !W. Va. Code^ pre- 
scribes only the mode of procedure for 
the revival of actions which, at com- 
mon law or by virtue of other statutory 
provisions, survive to or against the 
personal representative. Woodford v, 
McDanicls, T3 W. Va. 736, 742, 81 S. 
H. 544. 

By Consent — Revival of a cause 
against heirs of a deceased defendant 
by consent of such heirs dispenses with 
process to revive and make them par- 
ties. Teter v. Irwin, 69 W. Va. 200, 
71 S. E. 115. 



a. By 



Facias. 



See ante, "Time for Revival," etc., 
VIII, C, 1^; **In Chancery Causes- 
Bill of Revivor," VIII, C, 2, c. 

Administrator De Bonis Noo. — ^Va. 
Code 1919, § 5387; Barnes Code, ch. 
85, § 22. 

Incompetent Persons. — Va. Code 
1919, § 6168; Va. Code 1919, § 6169; 
Barnes Code, ch. 127, §§ 4, 5. 

Where Party Whose Powers Cease 
Is Defendant.— Va. Code 1919, § 6170; 
Barnes Code, ch. 127, § 6. 

When Issued.— Va. Code 1919, § 
6171; Barnes Code, ch. 127, § 7. 

Misdescription of Actions in Writ. — 
Where the parties are the same and it 
does not appear that there was any 
other suit pending between them, and 
there is nothing in the record showing 
surprise or prejudice, the misdescrip- 
tion of the action in a writ of scire fa- 
cias to revive the suit agadnst an ad- 
ministrator, as one in debt instead of 
assumpsit, lis immaterial. Davidson v. 
Kunst, 72 W. Va. 116, 118, 77 S. E. 
548. 

b. By Motion. 

See ante, "Suggestion of Death," 
VIII, B, 7. And see Va. Code 1919, § 
6168; Barnes Code, ch. 127, § 4. 

Sale of Property of Incompetent or 
Piopctl y Held in Trust.— Va. Code 
1919, § 5336. 



c. In Chancery Causes— Bill of Re- 
vivor. 

See ante, "Another Suit or Proceed- 
ing Pending," II, M. 

"The proceeding to revive this cause 
by writ of scire facias instead of by 
bill of revivor is authorized by § 4, ch. 
127 of the Code. Under that section it 
is not necessary that a bill of revivor 
be filed and process had thereon in or- 
der that a suit in chancery be revived 
on the death of one of the parties 
thereto. Such reviivor may be effected 
by a Svrit of scire facias as well as by 
bill of revivor. Reid v, Stuart, 20 W. 
Va. 382; Bock v. Bock, 24 W. Va. 586; 
Gainer v. Gainer, 30 W. Va. 390, 4 S. 
E. 424." • Moore v. Moore, 81 W. Va. 
17, 20, 93 IS. E- 037. 

A siMt in equity may be revived in 
the name of the proper representative 
of a dead plaintiff, without notice of 
sdre facias, on motion. Straight t^^ 
Ice, 156 W. Va. 60, 48 S. E. 837. 

4. Suffdency and Time of Order of 
RevivaL 

Entered at Rules«— Va. Code 1919, § 
6169; Barnes Code, ch. 127, § 6. 

XV. WAIVER OF PLEA. 

If issues are joined on pleas in abate- 
ment, and on pleas in bar, at the same 
time, and defendant goes to trial upon 
the merits, without asking that a trial 
on the pleas in abatement be first had, 
he thereby waives them. Houseman v. 
Globe, etc., Ins. Co., 78 W. Va. 586, 
588, 69 S. iE. ^69. 

XVI. IMPLIEDLY OVERRULING 

PLEA. > 

By a decision on the merits of the 
case, the court impliedly overrules such 
pleas lin abatement as present matters 
proper to be determined by the court. 
Houseman "v. Globe, "etc., Ins. Co., 78 
W. Va. 586, 89 S. E. 269. 

XVII. BURDEN OF PROOF. 

Upon a plea to the jurisdiction, or in 



20 



Abatement, Revival and Survival 



abatement, just as is the case with 
other affirmative pleas, the burden of 
proof is, as a general rule, on the de- 
fendant. Builders Supply Co. v. Pied- 
mont Lumber Co., 122 Va. 225, 94 S. 
E. 938. 



XVIII. TRIAL. 

See ante, "Pleas in Abatement in 
Criminal Cases," VII. 

Issues on Pleas in Abalfement Shall 
Be Tried 'First^Va. Code 1919, | 6107; 
Barnes Code, ch. 125, § 21. 



ABBREVIATION.— See post, INDICTMENTS, INFORMATIONS AND 
PRESENTMENTS; NAMES. 

ABIDING THE EVENT.— See post, STIPULATIONS. As to another 
suit pending, see ante, ABATEMENT, REVIVAL AND SURVIVAL. As to 
supersedeas or stay of proceedings, see post, APPEAL AND ERROR; 
SUPERSEDEAS AND STAY OF PROCEEDINGS. 



ABDUCTION AND KIDNAPPINa 

I. Abduction, 20. 
n. Kidnapping, 20. 

CROSS REFERENCES. 

See the title ABDUCTION AND KIDNAPPING, vol. l,.p. 56, and refer- 
ences there given. In addition, see post, CRIMINAL LAW; SEDUCTION. 



I. ABDUCTION. 

Female for Purpose of Defilement, 
etc.— Va. Code, 1919, §§ 4411, 4413; 
Barnes Code, ch. 144, § 16. 

Inmate of State Institution. — Va. 



Code, 1919, § 4407; Barnes Code, ch. 
144, § 14. 

With Intent to Use or Sell as a 
Slave.— Va. Code, 1919, § 4408. 
Illegal Seizure, etc., of a Child. — Va. 
Code, 1919, § 4412; Barnes Code, ch. ; Code, 1919, § 4409; Barnes W. Va. 
147, § 12 a (1). j Code, p. 1192, ch. 144, § 14. 

II. KIDNAPPING. I 

With Intent to Extort Money.— Va. ; 



ABOUT.— See post, MORE OR LESS; SALES; VENDOR AND PUR- 
CHASER. 

Effect of word about as qualifying quantity of goods sold, see Paxton Lum- 
ber Co. V, Panther Coal Co., 83 W. Va. 341, 98 S. E. 563. 

'About a minute is absolutely devoid of any certainty for it is a phrase very 
commonly used to denote a mere point of time and not the lapse of any cer- 
tain period." State v. Clifford, 59 W. Va. 1, 25, 52 S. E. 981. 

ABOUT HIS PERSON.— See post, WEAPONS. 

ABOVE PROPERTY.— See Spurrier v, Hobbs, 68 W. Va. 729, 730, 70 S. E. 
760. 

ABSENCE.— See post, ATTACHMENT AND GARNISHMENT; JUDG- 
MENTS AND DECREES; SERVICE OF PROCESS. As ground for con- 
tinuance, see post, CONTINUANCES. As to presumption of death from ab- 
sence, see post, PRESUMPTIONS AND BURDEN OF PROOF. 



ABSOLUTE.— As to absolute privilege, see post, NOTICE; WITNESSES. 
" 'Absolute safety/ as was said by the court in Norfolk, etc., Tract. Co. v. El- 
lington, 108 Va. 245, 61 S. E. 779, 'is unattainable, and employers are not in- 
surers.' " Potomac, etc., R. Co. v. Chichester, 111 Va. 152, 168, 68 S. E. 404. 
See post, MASTER AND SERVANT. 

Absolute control at all times as used in the statute relating to automobiles 
means such control as makes the operation of the car safe, in view of, and as 
determined by, its apparent situation and surroundings. A car is in absolute 
control, while running at a reasonable high rate of speed on a smooth, straight, 
unobstructed road. To be under absolute control, it need not be susceptible of 
instant stoppage. GoflF v, Clarksburg Dairy Co., 86 W. Va. 237, 242, 103 S. E. 58. 

ABSTRACT.— As to abstract instructions, see post, INSTRUCTIONS. 

" 'In the United States an abstract is not an implied feature of every sale of 
land. Since every title is of record, the doctrine of caveat emptor, in the ab- 
sence of special agreement, requires the purchaser to satisfy himself as to title, 
and for that purpose to make the necessary investigation and abstracts.' 1 Am. 
& Eng. Ency. L. 213." Thompson v. Robinson, 65 W. Va. 506, 509, 64 S. E. 
718. See post, VENDOR AND PURCHASER. 

Under a contract to furnish an abstract of title with a warranty deed, an ab- 
stract of title completely evidenced by muniments of record need not be veri- 
fied by an affidavit of the abstractor. Womack v. Agee, 79 W. Va. 22, 90 S. E. 
793. 

ABUSE OF PROCESS.— See post, MALICIOUS PROSECUTION; SUM- 
MONS AND PROCESS.' 

ABUSIVE LANGUAGE.— See post, LIBEL AND SLANDER. Punish- 
ment for Using Abusive Language. — Va. Code 1919, § 4536. 



ABORTION. 

CROSS REFERENCES. 

See the title ABORTION, vol. 1. p. 67, and references there given. In addi- 
tion, see post, CRIMINAL LAW; EVIDENCE; PHYSICIANS AND SUR- 
GEONS. 



Attempts to Produce Abortion or 
Prompt Its Procuring. — Va. Code 
1919, § 4401; Barnes Code, ch. 144, § 8. ' 

21 



Limitation of Prosecution — Two 
Years.— Va. Code 1919, § 4768; Barnes 
Code, ch. 152, § 10. 



ABUTTING OWNERS. 



I. Ohanging Orade of Streets, 22. 
m. Location of Steam Bailroads on Streets and Highways, 22. 
IX. Excavations in Street by Abutting Owners, 22. 

CROSS RBPERENCBS. 

See the title ABUTTING OWNERS, vol. 1, p. 60, and references there 
given. In addition, see post, ADJOINING LANDOWNERS; ADVERSE 
POSSESSION; CANALS; DEDICATION; DRAINS AND SEWERS; 
EMINENT DOMAIN; MUNICIPAL CORPORATIONS; NUISANCES; 
SPECIAL ASSESSMENTS; STREET RAILROADS; STREETS AND 
HIGHWAYS; TELEGRAPHS AND TELEPHONES; TURNPIKES AND 
TOLLROADS. As to right of abutter to enjoin occupation of street for 
private use. see post, INJUNCTIONS. As to authority of town council to re- 
quire occupants of adjacent realty to pave sidewalks, see post, SPECIAL AS- 
SESSMENTS. As to ascertainment of damages to abutting owners from 
change of grade, see post, STREETS AND HIGHWAYS. As to the elements 
of damages to abutting property from change of street grade, see post, STREETS 
AND HIGHWAYS. As to injury to person on street, see post, STREE^TS 
AND HIGHWAYS. As to liability for flooding abutting lots, see post, 
STREETS AND HIGHWAYS. As to ownership of fee in street or sidewalk, 
see post, STREETS AND HIGHWAYS. As to the right of abutter to access, 
light, air and view, see post. STREETS AND HIGHWAYS. 



I. CHANOINO GRADE OF 

STREETS. 

See post, SPECIAL ASSESS- 
MENTS; STREETS AND HIGH- 
WAYS. 

III. LOCATION OP STEAM RAIL- 
ROADS ON STREETS AND 
HIGHWAYS. 

Sec post, STREETS AND HIGH- 
WAYS. 

IX. EXCAVATIONS IN STREET 
BY ABUTTING OWNERS. 

See post, STREETS AND HIGH- 
WAYS. 

"Excavations, properly and safely 
constructed under the public streets in 
cities, for the convenience of the own- 
ers or premises adjoining, are not un- 
lawful; and they are not liable to be 
treated as nuisances if kept in repair, 
and the use of the street is not inter- 



rupted for an unreasonable length of 
time." Lynch v. North View, 73 W. 
Va. 609. 616, 81 S. E. 833. 

The abutting owner of the fee has a 
right to use the subsurface of a public 
street, subject to the superior right of 
easement therein in favor of the mu- 
nicipality for water, gas and sewer 
mains, etc., provided he does not ma- 
terially interfere with travel on the 
surface. Lynch v. North View, 73 W. 
Va. 609, 616, 81 S. E. 833. 

Connectiiig Dwelling witii Water 
Mam — Penoiad Injuries. — The open- 
ing of a ditch in a public street, for 
the purpose of laying a pipe to con- 
nect a dwelling house with the water 
main, is not. per se, a nuisance, and 
does not make the owner of the house 
liable to a person injured by falling 
into the ditch, unless such owner has 
been guilty of negligence. Jenkins v, 
Montgomery. 69 W. Va. 796, 72 S. E. 
1087. 



22 



A CASE AGREED.— See post, AGREED CASE. 

ACCELERATION.— See post, REMAINDERS, REVERSIONS AND 
EXECUTORY INTERESTS. 

ACCEPTANCE.— See post, BlhhS, NOTES AND CHECKS; CON- 
TRACTS; DEDICATION; SALES. 

ACCESS.— See ante, ABUTTING OWNERS, post, EASEMENTS. 

ACCESSORIES.— See post, ACCOMPLICES AND ACCESSORIES. 

ACCIDENT.— See post, EVIDENCE; MASTER AND SERVANT; NEG- 
LIGENCE. As to homicide as constituting accidental killing by violence, see 
post, ACCIDENT, CASAULTY, HEALTH AND INDUSTRIAL INSUR- 
ANCE. As to accident in equity see post, MISTAKE AND ACCIDENT. 
As to whether proof of an accident may be circumstantial and sufficiency of 
evidence to show accident, see General Acci., etc., Corp. v. Murray, 120 Va. 115, 
90 S. E. 620. See also post, ACCIDENT, CASUALTY, HEALTH AND IN- 
DUSTRIAL INSURANCE. 



ACODENT, CASUALTY, HEALTH AND I^fDUSTRIAL 

INSURANCE. 

L Statutory Begnlation of Oompanies, 2^. 
n. The Application, 24. 

A. In General, 24. 

B. Representations by Insured, 24. 

m. The Contract, 24. 

A. In General, 24. 

B. Liability of Insurer, 25. 

1. In General, 25. 

2. Limitation of Liability, 25. 

a. Voluntary or Negligent Exposure to Unnecessary Danger, 25. 

b. Injury While on Roadbed or Bridge of Railway, 26. 

c. Visible Marks on Exterior of Body Lacking, 26. 

C. Cancellation of Policy, 27. 



IV. Pleading and Practice, 27. 
V. Evidence, 27. 

CROSS REFERENCES. 

Sec the title ACCIDENT INSURANCE, vol. 1. p. 71, and references there 
given. In addition, see post, DAMAGES; EVIDENCE; FIRE INSURANCE; 
INSURANCE; LIFE INSURANCE; MASTER AND SERVANT. 

23 



24 



Accident, Etc., Insurance 



I. STATUTORY REGULATION OF 
COMPANIES. 

See also post, "The Contract," III. 

Accident Insurance Companies. 
— Va. Code, 1919, §§ 4240; 4305; 4322- 
43^. Barnes Code, chap. 34, §§ 61, 
62, 63. 

Casualty Companies. — Va. Code, 
1919, §§ 4259-4272. 

Industrial Skk Benefit Companies 
and AssociationB. — Va. Code 1919, §§ 
4551-4359; Pollard's Code 1920, pp. 
204, 733. Barnes Code, chap. 34, §§ 
€1, 62, 63. 

II. THE APPLICATION. 

See also post, "Evidence," V. 

A. IN GENERAL. 

Application as Part of Conitract. — 

To make the application for a policy 
of insurance in an accident and health 
insurance company, organized under 
the laws of a state other than this and 
doing business here, containing war- 
ranties, part of the contract of insur- 
. ance, it must be attached to the 
policy. Mere reference to it in the 
policy and adoption thereof in terms 
do not suffice. Bowyer v. Continental 
Casualty Co., 72 W. Va. 333, 78 S. E. 
1000. 

In the absence of statutory prescrip- 
tion of the forms of contracts of in- 
surance, such reference and adoption 
would make the application part of 
the policy, but section 62 of chapter 
74 of the Code as revised, amended 
and reenacted by chapter 77 of the 
Acts of 1907 (serial section 1107a 
Ann. Code Supp. 1909), and sections 
15 and 16 of said chapter, requiring 
policies of insurance fully and plainly 
to set forth the contracts between the 
parties thereto, exclude therefrom all 
conditions, agreements and warranties 
not' expressed in the policies them- 
selves, or papers attached thereto. 
Bowyer v. Continental Casualty Co., 
72 W. Va. 33, 78 S. E. 1000. See post, 
INSURANCE. 



Classification of Applicant by Agent 
'— Estoppel of Company. — An accident 
insurance company is estopped to 
deny that a party insured by it was 
placed in the wrong classification, 
when such classification was made by 
its agent upon full and truthful in- 
formation given such agent as to the 
emplo3rment and occupation of the as- 
sured. Parker v. American Acci. Ins. 
Co., 79 W. Va. 576, 92 S. E. 88. 

B. REPRESENTATIONS BY IN- 
SURED. 

Under Virginia Code of 1904, § 
3344a, as modified by Code of 1919, 
§ 4220, omissions of the applicant, 
concerning other accident or health 
insurance, without any wilful purpose 
to deceive or defraud the company, 
held not to avoid the policy so far as 
death from accident was concerned. 
Standard Acci. Ins. Co. v. Walker, 127 
Va. 140, 102 S. E. 585. See post, IN- 
SURANCE. 

Where the occupation of the in- 
sured in an accident policy was that 
of contractor, whose chief duty was to 
supervise the work of his servants in 
brick construction, although he some- 
times actually laid bricks, for the pur- 
pose of showing inexpert brick layers 
how the work was to be done, his rep- 
resentation that the duties of his oc- 
cupation were fully described as "Pro- 
prietor — supervising only," was not a 
false representation which induced the 
company to give him a preferred 
classification. He was, in fact, a pre- 
ferred risk, and received the classifica- 
tion to which he was entitled. 
Standard Acci. Ins. Co. v. Walker, 
127 Va. 104, 102 S. E. 585. 

III. THE CONTRACT. 

A. IN GENERAL. 

Character and Content of Accident 

Policies.— Va. Code 1919, §§ 4315-4321. 

Accident or Sick Benefits Not Sub- 

I ject to Attachment, Garnishment, Etc. 

^— Va. Code J 91 9, § 4219. 



Accident, Etc., Insurance 



ZS 



B. LIABILITY OF iLNSURER. 

1. In General. 

Death by Homicide. — In the absence 
of any provision in an accident policy 
relieving the company from liability in 
case of death by homicide, such a kill- 
ing is an accidental killing by violence, 
for which the company is liable. Stand- 
ard Acci. Ins. iCo. v. Walker, 127 Va. 
140, 102 S. E. 685. 

Into|zication of Insured as a De- 
fense. — Where an accident policy is 
conditioned against liability for injury 
happening while insured is intoxicated, 
and where plea in that behalf is to be 
successfully relied upon, the evidence 
must show that insured was actually 
intoxicated at the time the accident be- 
fell him. Beard v. Indemnity Ins. Co., 
65 W. Va, 283, 64 S. E. 119. 

Contribatory Negligence. — Accident 
insurance is not designed to furnish in- 
demnity only in cases where the policy 
holder orders his conduct with grave 
circumspection and provident foresight 
of consequences. Mere contributory 
negligence is no answer to an action 
to a contract of insurance. Therefore, 
an insurer against accident must not 
be relieved from liability because of 
mere contributory negligence unless 
the contract is plain and unequivocal 
that it should be. Beard v. Indemnity 
Ins. Co., 65 W. Va. 283, 293, 64 S. E. 
119. 

Duty of Company as to Its Records. 
—It is the duty of an accident insur- 
ance company to see that its records 
correctly set forth the facts that are 
communicated to it, and it will be held 
to the same measure of responsibility 
as if it had done so. Wolonter v. 
United States Casualty Co., 126 Va. 
156, 101 S. E. 58, 

2. Limitation of Liability. 

a. Vctoitaiy or Negligtat Exposure to 

Unnecessary Danger. 
. Meaning of Phrase. — ^The phrase 
"voluntary of negligent exposure to un- 
necessary danger," in a policy of acci- 
dent insurance exempting the insurer 



from liability for injury from cause so 
expressed, is a cumulative or redun- 
dant expression, and is properly dnter- 
pretable as "voluntary exposure to 
unnecessary danger." Beard v. Indem- 
nity Ins. Co., 65 W. Va. 283, 64 S. E. 
119. 

Danger Unknown. — Exposure to an 
unknown danger, though a voluntary 
act, as not a voluntary exposure. Did- 
dle V. Continental Casualty Co., 65 W. 
Va. 170, 174, 63 S. E. 9«2; 'Beard w. In- 
demnity Ins. Co., 65 W. Va. 283, 294, 

64 S. E. 119. 

Sitting or lying on a bench at the 
side of a building, near the top of an 
unguarded wall, on a dark night, it not 
appearing that insured in so doing was 
conscious of the pitfall, or had knowl- 
edge of his surroundings, is not "vol- 
untary exposure to unnecessary dan- 
ger." Beard v. Indemnity Ins. Co., 

65 W. Va. 283, 64 S. E. 119. 

One who lies down to sleep on the 
top of the boilers of a steamboat, and 
is there injured by steam escaping from 
a safety valve, is not guilty of volun- 
tary exposure to unnecessary danger, 
though warned not to sleep there, un- 
less he was conscious of the danger 
from escaping steam from the safety 
valve. Beard v. Indemnity Ins. Co., 
65 W. Va. 283, 295, 64 S. E. 119. 

Involuntary Exposure. — A merely in- 
advertent and unintentional exposure to 
a known danger, under peculiar cir- 
cumstances, not affording opportunity 
for deliberate action, is an involuntary, 
not voluntary, exposure. Diddle v. 
Continental Casualty Co., 65 W. Va. 
170, 174, 63 S. E. 962. 

Obvious Risk of Injury or Obvious 
Danger. — ^A person who attempts to 
cross a railroad track immediately in 
front of a rapidly approaching train; 
and is run over and killed, exposes 
himself to an ^'obvious risk of injury or 
obvious danger," within the meaning 
of a condition in an accident insurance 
policy, limiting the liability of the in- 
surer. Combs V, Colonial Casualty Co*, 
7^ W. Va. 473, 80 S. E. 779. 



J6 



Accident, Etc., Insurance 



It is believed that, in all those cases 
in which the danger was obvious and 
there was opportunity for deliberation, 
not instances of sudden peril, preclud- 
ing volition or producing momentary 
confusion of thought, the courts have 
uniformly held the insured bound to 
know it and treated him as if his 
knowledge thereof had been admitted 
or uncontroverted. Diddle v. Conti- 
nental Casualty Co., 65 W. Va. 170, 
176, 63 S. E. 962. 

Either reckless or deliberate encoun- 
tering of known danger so obvious that 
a reasonably prudent man would have 
observed and avoided it, if the circum- 
stances were not such as necessitated 
the encountering thereof, is a "volun- 
tary exposure." Diddle v. Continental 
Casualty Co., 65 W. Va. 170, 63 S. E. 
962; Beard v. Indemnity Ins Co., 65 W. 
Va. 283, 290, 64 S. E. 119. 

An obvious danger is one that is 
plain and apparent to a reasonably ob- 
servant person, and the fact that in- 
sured may not have observed it and 
been conscious of it at the time of the 
fatal accident, is not material. He 
owed to the insurer, as well as to him- 
self, the duty to be reasonably careful 
when in the presence of an obvious 
danger, and his failure to use reason- 
able care does not excuse him. Combs 
V. Colonial Casualty Co., 73 W. Va. 
473, 475, 80 S. E. 779. 

Voluntary Exposure. — In an accident 
policy which exempts liability as to an 
injury caused by the insured's 'Volun- 
tary exposure to unnecessary danger," 
those words are properly interpreted to 
refer only to danger of a real, substan- 
tial character, which the insured recog- 
nized, but to which he nevertheless 
purposely and consciously exposed 
himself, intending at the time to as- 
sume all the risks of the situation. 
Beard v. Indemnity Ins. Co., 65 W. 
Va. 283, 64 S. E. 119. 

Necessary Danger. — A voluntary ex- 
posure to necessary danger is not for- 
bidden by a clause in an accident insur- 
ance policy, limiting the liability of the 



insurer in case of an injury resulting 
from "voluntary exposure to unneces- 
sary danger or obvious risk of injury." 
Diddle v. Continental Casualty Co., 66 
W. Va. 170. 63 S. E. 962. 

Rights of Parties Fixed by Contract 
— In an issue raised under a clause in 
an accident insurance policy, limiting 
the liability of the insurer in case of 
an injury resulting from "voluntary ex- 
posure to unnecessary danger or obvi- 
ous risk of injury," the rights of the 
parties are fixed and determined by the 
contract, not the law of negligence, but 
certain general principles, operative 
alike in controversies arising ex con- 
tractu and ex delicto, have application 
and, of these, some are recognized in 
the law of negligence. Diddle v. Con- 
tinental Casualty Co., 65 W. Va. 170, 
63 S. E. 962. 

b. Injury While on Roadbed or Bridge 
of Railway. 

In an accident policy, excepting lia 
bility for injury to insured while on the 
roadbed or bridge of a railway, the 
manifest intention is to exempt the in- 
surer from responsibility for injury 
caused by collision with moving trains 
thereon. Beard v. Indemnity Ins. Co., 
65 W. Va. 283, 64 S. E. 119. 



Exterior of Body 



c. Visible Marks on 
Lacking. 

Ordinarily in case of an immediately 
fatal accident, the difference in the ap- 
pearance of insured just before the ac- 
cident and of his dead body immedi- 
ately thereafter is a sufficient visible 
mark upon the body of the insured to 
prevent the reduction of the indemnity 
provided in the policy under a provi- 
sion therein contained in case of inju- 
ries, fatal or otherwise, of which there 
shall be no visible marks on the exte- 
rior of the body, the limit of the com- 
pany's liability shall be one-fifth of the 
amount that would otherwise be pay- 
able under the policy. Parker v. North 
American Acci. Ins. Co., 79 W. Va. 
576, 92 S. E. 88. 



Accident, Etc., Insurance 



27 



C. CANCELLATION OF POLICY. 

Provinon VaUd. — A contract of ac- 
cident insurance providing that the 
company might cancel the policy by 
written notice mailed to the latest ad- 
dress of assured appearing on the com- 
pany's record with the company's 
check for the unearned part of the 
premium, is a valid contract, and the 
company has the right to cancel in the 
manner provided. Wolonter v. United 
States Casualty Co., 126 Va. 156, 101 S. 
E. 58. 

Notice of Cancellatioiu — Under the 
facts of the case . the notice of cancel- 
lation held to be invalid since it was 
not sent according to the stipulation in 
the contract of insurance. Wolonter v. 
United States Casualty Co., 126 Va. 
156, 101 S. E. 58. 

IV. PLEADING AND PRACTICE. 

Ptaud in the procurentent of the is- 
suance of a policy of accident insur- 
ance not under seal need not be spe- 
cially pleaded. Fraud if established 
would be a full and complete, not 
merely a partial, defense. Evidence 
thereof is admissible under the general 
issue. Bowyer v. Continental Casualty 
Co., 72 W. Va. 333, 337, 78 S. E. 1000. 

V. EVIDENCE. 

Presumptioiis and Burden of Proof. — 

In an action to recover damages for a 
negligent injury, the burden of showing 
negligence by a preponderance of the 
evidence is upon the plaintiff, and if 
the injury might have resulted from 
one of two causes for only one of 
which the defendant was responsible 
there can be 410 recovery, neither can 
the plaintiff recover if it is just as prob- 
able that the damage was caused by the 
one as 'by the other. General Acci., 
etc, Corp. V. .Murray, 120 Va. 115, 90 
S. E. 620. 

In order |to recover on an accident 
policy, the burden is on the plaintiff to 
bring himself within the provisions of 
the contract of insurance by proving 
an accidental injury to the assured. 
There is no presumption to aid in this 



proof, as death is presumed to be the 
result of natural dissolution rather than 
accidental injury. General Acci., etc., 
Corp. V. Murray, 120 Va. 115, 90 S. 
E. 620. 

Unless the injury is shown to have 
been intentionally self-inflicted or in- 
flicted by some other person, the legal 
presumption is that it was accidental. 
Beard v. Indemnity Ins. Co., 65 W. 
Va. 283, 64 S. E. 119. 

Evidence of Injury. — In an action on 
a policy of accident insurance, evidence 
that insured was found lying at the 
bottom of a iwall, badly injured, near 
the unrailed top of which he was re- 
clining on a bench only shortly be- 
fore, alione, and in the dia^kness ^f 
night, makes a prima facie case of in- 
jury by violent, external and acciden- 
tal means. Beard v. Indemnity Ins. ' 
Co., 66 IW. Va. 283, 64 S. E 119. 

While the proof of the accident may 
be circumstantial, the circumstances 
proved must point directly to ,the main 
fact in issue and not be such as to lead • 
merely into a labyrinth of surmises 
and conjectures. Even upon a demur- 
rer to evidence the finding can not be 
based upon conjecture, guess or ran- 
dom judgment, but must be founded 
upon facts shown in evidence. General 
AccL, etc., Corp. v. Murray, 120 Va. 
115, 90 S. E. 620. 

Injury as Proximate Citase of Death. 
— Under the evidence it was held that 
there was no necessary or natural con- 
nection between the injury and the dis- 
ease of which decedent died, and there 
could be no recovery on the policy in- 
suring against bodily injuries effected 
through external, violent and purely ac- 
cidental causes which should solely and 
independently of all other causes neces- 
sarily result in his death. Continental 
Casualty Co. v, Peltier, 104 Va. 222, 51 
S. E. 209; IGeneral Acci., etc., Corp. 
V, Murray, 120 Va. 115, 90 S. E. 620. 

Evidence of Intoddcation. — Evidence 
as to appearances of intoxication, or 
their absence, by witnesses who saw 
insured immediately before or after the 



28 



Accident, Etc., Insurance 



injury, is proper and admissible in that 
behalf. Beard v. Indemnity Ins. Co., 
65 W. Va. 283, 64 S. ,E. 119. 

Application as Evidence. — Thougrh 
inadmissible, by reason of the West 
Virginia statute, to prove statements of 
the insured therein as a warranty or 
part of the policy, because not attached 
to it, the application for a policy is ad- 
missible, together with other evidence, 
to prove fraud in the procurement of 
the policy. Bowyer v. Continental 
Casualty Co., 72 W. Va. 333, 337, 78 S. 
E. 1000. 

Fraud. — "It requires more than a 



mere false statement to prove fraud. 
It must have been made with intent to 
mislead and deceive, and the injured 
party must have relied upon it." Bow- 
yer V. Continental Casualty Co., 72 W. 
Va. 333, 338, 78 S. E. 1000. 

Evidence of Participation by Benefi- 
ciary in Homicide of Deceased. — In an 
action on an iaccident policy, evidence 
was held insufficient to show guilty 
knowledge or participation by benefi- 
ciary in alleged homicide of deceased. 
Standard Acci. Ins. Co. v. Walker, 127 
Va. 140, 102 S. E. 585. 



ACCOMMODATION PAPER.— See post, BILLS, NOTES AND CHECKS. 



ACCOMPUCES AND ACCESSORIES. 

I. Definition and General Oonsideration, 2s. 
n. Who Are Accomplices and Accessories, so. 

A. Accessory before the Fact, 30. 

B. Accessory after the Fact, 30. 

IV. Prosecutions, so. 

B. Indictment, 30. 

C. Jurisdiction and Venue, 30. 

D. Evidence, 31. 
E5^. Instructions, 31. 

F. Questions for Jury, 32. 
H. Punishment, 32. 

CROSS REFERENCES. 

See the title ACCOMPLICES AND ACCESSORIES, vol. 1, p. 74, and refer- 
ences there given. In addition, see post, ASSAULT AND BATTERY; CON- 
SPIRACY; CRIMINAL LAW; DUELLING; HOMICIDE; PRIZE FIGHT 
TNG. 



L DEFINITION AND GENERAL 
CONSIDERATION. 
"Aider and Abettor.** — Any person 
who IS present at the commission of a 
trespass, encouraging or exciting the 
same by words, gestures, looks or 
signs, or who in any way or by any 
means countenances and approves the 
same, is in law deemed to be an aider 
and abettor, and liable as principal, and 
proof that a person is present at the 
commission of a trespass without dis- 
approving or opposing it, is evidence 



from which, in connection with other 
circumstances, it is competent for the 
jury to infer that he assented thereto, 
lent to it his countenance, and approved 
it. and was thereby aiding and abetting 
the same. Hunt v. DiBacco, 69 "W. 
Va. 449, 71 S. E. 584. 

Russell (1 vol. 456) lays it down, 
that "in order to make an abettor to a 
manslaughter a principal in the felony, 
he must be present, aiding and abet- 
ting the act committed." This learned 
author is sustained by Hale. State v. 



Accomplices and Accessories 



29 



Yoho, 64 W. Va. ®50, 252, 61 S. E. 367. 

Aid.— 'Though the word 'aid' does 
not necessarily embrace or imply guilty 
knowledge or wrongful purpose, yet 
when supplemented by 'abet' as both 
are used in the statute and indictments, 
they jointly indicate such knowledge 
and purpose and the intention to en- 
courage the commission of the offense. 
Such are the useful definitions of these 
terms in felony indictments where 
there are accessories either before or 
after the fact." ' State v, Ankrom, 86 W. 
570, 574, 103 S. E. 925. 

"Aiding and Abettmg" Distinguished 
from Accessories before the Fact — In 
State r. Putman, 18 S. C. 175, 44 Am. 
Rep. 569, the court said that one be- 
ing present, aiding and abetting was 
not identical with an accessory before 
the fact. Why? Because he was pres- 
ent acting. State v, Yoho, 64 W. Va. 
250, 252, 61 S. E. 367. 

Distinction between Principal and 
Accessory Abolished^ — Sees. 6 and 8, 
Ch. 152, of the West Va. Code (Barnes 
Code, p. 1256), in effect, abolish the 
common law distinction between an 
accessory before the fact and a princi- 
pal felon, by making such accessory, 
in every felony, punishable as if he 
were the principal in the first degree, 
and punishable in the county in which 
the principal felon might be indicted. 
Weil V. Black, 76 W. Va. -685, 86 S. E. 
666. See post. "Jurisdiction and 
Venue." IV, €; "Punishment," IV, H. 

"The relation of principal and agent, 
or of employer and employee, is not 
recognized in the criminal law. By that 
law, every man must stand for himself. 
No man can authorize another to do 
what he may not lawfully do himself. 
Tf the attempt to confer such authority 
be made, and the unlawful act be 
done, both are guilty." State v. Hena- 
ghan, 73 W. Va. 706, 713. 81 S. E. 539. 

H a person with felonious intent 
through the instrumentality of an inno- 
cent agent, cause a crime to be com- 
mitted, he, and not the agent, is the 
principal, and is punishable accord- 



ingly, although he was not present at 
the time and place of the offense either 
actually or constructively, vinthin the 
meaning of the law of aider and abet- 
tor, operative between principal and 
accessory before the fact. As between 
him and the innocent agent, there is 
no such relation. He alone ds the guilty 
party. State v, Bailey, 63 W. Va. 668, 
60 S. E. 785. 

Principals in ;First or Second Degree. 
— If the actor, the person who performs 
the manual act incident to the crime, 
had felonious intent in the performance 
thereof, or knew the act was criminal, 
he is a principal in the first degree; and 
the person at whose instigation he 
acted is either a coprincipal in the first 
degree or a principal in the second de- 
gree, if he was actually or construc- 
tively present, but if not present in ei- 
ther sense, he is an accessory before 
the fact. State v. Bailey, 63 W. Va 
668, 60 S. E. 785. 

"A principal in the second degree is 
one who is present aiding and abetting 
the principal actor in the commission 
of the crime and actual physical pres- 
ence is not necessary; a constructive 
presence is sufficient, as in the instance 
of a person keeping watch or guard at 
a convenient distance while the murder 
is being committed by the principal 
actor." State v, Cremeans, 62 W. Va. 
134, 137, 57 S. E. 405. 

If persons combine together for the 
purpose of rescuing a person in the 
custody of officers of the law, and in 
the execution of such design a murder 
is committed, all are equally principals 
in the murder. State v. Cook, 81 W. 
Va. 686. 95 S. E. 792. See post, HOM- 
ICIDE. 

If a party who actually did an unlaw- 
ful act was innocent of intentional 
wrong, land the act on his part was by 
procurement of another, it imputes the 
criminal intent to that other and makes 
him the guilty party, although he was 
not in any sense an accomplice, co-con- 
! spirator, or aider or abettor of the 
actor. The relation of the parties to 



30 



Accomplices and Accessories 



one another and to the act is such as 
to create an exception to the general 
rules of law respecting principals and 
accessories. State v. Bailey, 63 W. Va. 
668, 672, 60 S. E. 785. 

II. WHO ARE ACCOMPLICES 
AND ACCESSORIES. 

A. ACCESSORY BEFORE THE 
FACT. 

There can be no accessory without a 
principal. State v, Bailey, 63 W. Va. 
668, 60 S. E. 785. 

An accessory before the fact is one 
who is absent at the time of the ac- 
tual perpetration of the crime, but 
procures, counsels, commands, incites 
or abets another to commit the crime. 
The crime of an accessory before the 
fact is a particular one. The absence 
of the accessory before the fact at the 
time and place of the principal offense 
is an essential element of the crime, 
and absence at the time the crime was 
committed is necessary to make him 
an accessory before the fact. State v. 
Cremeans, 62 W. Va. 134, 137, 57 S. E. 
405. See State v. Bailey, 63 W. Va. 
668, 60 S. E. 785. 

B. 1 ACCESSORY AFTER THE 

FACT. 

What Constitutes Accessory after 
the Fact. — The true test whether one is 
accessory after the fact is to consider 
whether what he did was done by way 
of personal help to his principal with 
a view to enabling his principal to 
elude punishment; the kind of help be- 
ing material. In the case at bar, the 
evidence fails utterly to prove any act 
on the part of the plaintiff in error in 
the way of help to his alleged princi- 
pal with a view to enabling him to 
elude punishment. Buck v. Common- 
wealth, 116 Va. 1031, 83 S. E. 390. 

Who Not Deemied Accessaries after 
the Fact. — But no person in the rela- 
tion of husband and wife, parent or 
grandparent, child or grandchild, 
brother or sister, by cosanguinity or af- 
finity, or servant to the offender, who, 
after the commission of a felony, shall 



aid or assist a principal felon or ac- 
cessary before the fact, to avoid or es- 
cape from prosecution or punishment, 
shall be deemed an accessary after the 
fact. Va. Code 1919, § 4765; Barnes 
W. Va. Code, p. 1256, ch. 153, § 7. 

IV. PROSECUTIONS. 

B. INDICTMENT. 

Any accessary before the fact may be 
indicted either with such principal or 
separately. Va. Code 1919, § 4766; 
Barnes W. Va. Code, p. 1256, ch. 152, 
§ 8. 

C. JURISDICTION AND VENUE. 
An accessary, either before or after 

the fact, may, whether the principal 
felon be convicted or not, or be amen- 
able to justice or not, be indicted, con- 
victed, and punished in the county or 
corporaton in which he became acces- 
sary, or in which the principal felon 
might be indicted. Va. Code 1919, § 
4766; Barnes W. Va. Code, p. 1256, ch. 
152, § 8. 

"State V, Ellison, 49 W. Va. 70, 38 
S. E. 574, holds § 8 (Chap. 152, W. Va. 
Code) not to be unconstitutional because 
it provides that the accessory can be 
tried in the county where the principal 
might be indicted, although he did not 
therein counsel and advise the commis- 
sion of the principal's act. The locus 
in quo of the accessory's crime is made 
the county in which the principal com- 
mits the felonious act; and that part of 
the statute which attempts to make the 
crime punishable in the place where 
the accessorial acts are committed of 
course, can have no extra-territorial 
effect. But that does not prevent the 
accessory's act, wherever committed, 
from being tried where the felonious 
act is consummated; provided jurisdic- 
tion of his person be obtained. That 
an accessory is without the state when 
he counsels and procures the commis- 
sion of a felony within the state, makes 
it none the less an offense against the 
laws of this state, if the principal's act 
be committed therein." Weil v. Black. 
70 W. Va. 685, €93, 86 S. E. 666. 



Accomplices and Accessories 



31 



D. EVIDENCE. 

See post, CONSPIRACY. 

Acts and Declarations.— The motives 
and purpose of a principal in the First 
Degree are directly in issue on the 
trial of the principal in the Second 
Degree and to show such motives and 
purpose the acts and declarations of 
the former, although not made in the 
presence of the latter, may be intro- 
duced. Commonwealth v. Allen, 18 Va. 
Law Reg. 410. 

When two or more accomplices are 
tried together for felony, the declara- 
tion or confession of one made after 
the criminal act in the absence of the 
others, too long after it to be a part 
of the res gestae, is admissible in evi- 
dence; but the court must instruct the 
jury that it Js not to be considered as 
evidence against any one but the one 
making the confession. State v. Mc- 
Coy, 61 W. Va. ^58, 57 S. E. 294. 

Uncorroborated Testimony of Ac- 
complice. — While the jury may, if they 
see proper to do so, convict upon the 
uncorroborated testimony of an accom- 
plice alone, it is the duty of the court 
to warn them not to do so. As to the 
extent of the corroboration, the gen- 
eral rule, and the one which is correct 
and safe is that if two or more accom- 
plices are produced as witnesses, they 
are not deemed to corroborate each 
other, but the same rule is applied, and 
the same confirmation is required, as if 
there were but one. Moreover, the 
corroboration or confirmation must re- 
late to some fact (or facts) which 
goes to establish the guilt of the ac- 
cused. Jones V. Commonwealth, 111 
Va. 862, 69 S. E. 953. See post, "In- 
structions," IV, E5^. 

Impeaching Testimony of Accom- 
plice — Any evidence tending to shed 
light upon the evidence of accomplices, 
or to affect their credibility, or the 
weight to which their testimony is en- 
titled, by showing what influences, if 
any, have been brought to bear upon 
them is plainly admissible. If an ac- 
complice has been promised immunity 



from prosecution, the jury are entitled 
to know it. Jones v. Commonwealth, 
111 Va. 862. 69 S. E. 958. 

E54. INSTRUCTIONS. 

Conviction upon Uncorroborated 
Testimony of AccompHce.--Where the 
court instructed the jury that they 
might, if they thought it proper to do 
so, convict the accused upon the un- 
corroborated testimony of an accom- 
plice, but nevertheless the evidence of 
an accomplice must be received with 
great caution, and that if two or more 
accomplices are produced as witnesses 
they are not deemed to corroborate 
each other, it was held not error to re- 
fuse to further instruct the jury that, 
"the source of such evidence is tainted, 
and the danger of collusion between 
the accomplices and the temptation to 
exculpate themselves by fixing the re- 
sponsibility upon others is so strong 
that it is the duty of the court to warn 
the jury against the danger of convict- 
ing the accused upon their uncorrobo- 
rated testimony." Hunt v. Common- 
wealth, 126 Va. 815, ;101 S. E. 896. 

The instruction as given in the pre- 
ceding syllabus was as favorable to the 
accused in its statement upon the sub- 
ject dealt with as he could ask. The 
quoted language was objectionable be- 
cause it needlessly elaborated the rule 
fully stated by the instruction as given, 
by entering upon a statement of the 
reasons for such rule, which statement 
was likely to mislead the jury into con- 
cluding that the court thereby ex- 
pressed an opinion that the testimony 
referred to was in fact "tainted" and 
was in fact "uncorroborated" in any 
particular; whereas it was for the jury 
to decide whether the testimony in 
question was "tainted," and there was 
evidence in the case corroborating the 
testimony in 'question in some particu- 
lars. Hunt V. Commonwealth, 126 Va. 
815, 101 S. E. 896. 

In Commonwealth v. King, 9 Va. 
Law Reg. 653, 657, the following in- 
struction was given: "The court in- 



32 Accord and Satisfaction 



structs the jury that although the testi- 
mony of an accomplice if unsupported 
is always received with great caution, 
yet an accomplice is unq«uestionably a 
competent witness, unless he has been 



having committed a crime through the 
instrumentality of an innocent agent, 
the guilt or innocence of the latter is 
a question for the jury, if there is evi- 
dence tending to prove criminal intent 



previously sentenced for an infamous ' on his part. State v, Bailey, 63 W. 

offense, and he is competent alone; that Va. 668, 60 S. E. 785. 

is, a prisoner may be convicted on the tjttvtqmx/t^mt 

testimony of an accomplice uncorrobo- ] ^- -t-UiNibWMiiJN i. 

rated by that of any other witness, it | How Principal in Second Degree and 

being the duty of the jury in all cases , Accessaries Punished. — Va. Code 1919, 



to consider the evidence and judge of 
the credit of the witnesses." 

F. QUESTIONS FOR JURY. 

On the trial of one charged with 



§ 4765; Barnes W. Va. Code, p. 1256, 
ch. 152, § 6. 



ACCORD AND SATISFACTION. 

I. Definition and Oeneral Consideration, 32. 
n. What Oonstitutes, 33. 

54 A. In General, 33. 

ni. Effect of Accord and Satisfaction, 33. 
IV. Pleading and Practice, 34. 

CROSS REFERENCES. 

See the title ACCORD AND SATISFACTION, vol. 1, p. 81, and references 
there given. In addition, see post, BILLS, NOTES AND CHECKS; COM- 
PROMISE AND S'ETTLEMENT; CONTRACTS; EVIDENCE; LIMITA- 
TION OF ACTIONS; NOVATION; PAYMENT; RELEASE. 



I. DEFINITION AND GENERAL 
CONSIDERATION. 



there must be an actual acceptance, 
and not a mere agreement to accept. 



Pre-Existing Debt or Dispute.—Al- Rector v. Hancock, 127 Va. 101, 102 S. 
legations of bill held not to make a case E. MS, 

of accord and satisfaction, because the | The plea of accord and satisfaction is 
written and verbal contracts were not established where the bill affirma- 
contemporaneous, whereas an accord ; tively shows that there never has been 
implies a pre-existing debt or dispute, any substitution of the one contract for 
Rector v. Hancock, 127 Va. 101, 102 S. the other, and that the holder of the 
E. 663. notes, though repeatedly requested, has 

An accord without satisfaction is in- failed and refused to comply with his 
sufficient and so where the defense of | agreement to accept the possession of 
accord and satisfaction is set up the , the land and the services of complain- 
cvidence must show both an accord ants in discharge thereof. Rector v. 
and a satisfaction. Eichelberger v, Hancock, 127 Va. 101, 115, 102 S. E. 
Mann, 115 Va. 774, 778, 80 S. E. 595. 663. 

Actual Acceptance Necessary. — In Effect of Fraud. — A written release 
order to constitute a valid accord and or acquittance of a claim for personal 
satisfaction, whether the substituted j injury will not sustain a plea of accord 
contract be executory or executed, ! and satisfaction in the premises, if its 



Accord and Satisfaction 



33 



execution was obtained by deception 
and fraud. Norvell v, Kanawha, etc., 
R- Co., 67 W. Va. 467, 68 S. E. 288. 

II. WHAT CONSTITUTES. 
54A. IN GENERAL. 

A receipt by the grantor of an ease- 
ment "to lay, maintain, operate and re- 
move" an oil and gas pipe line acknowl- 
edging payment *'in full for all damages 
on any and every account caused by 
or arising from laying, maintaining and 
operating" such pipe line, while owner 
of the servient land, the terms thereof, 
when properly construed, not neces- 
sarily comprehending subsequent inju- 
ries, does not operate as a release, or 
accord and satisfaction, barring him or 
his vendee from recovery for such in- 
juries. Moore v. Hope Natural Gas 
Co., 76 W. Va. 649, 86 S. E. 564. 

An executed contemporataeoiig verbal 
agreement for the discharge of a note, 
as distinguished from an executory 
contract for the same purpose, when 
fully performed by the maker of a 
money obligation and accepted as such 
by the payee amounts to an accord and 
satisfaction. Rector v. Hancock, 127 
Va. 101, 113, 102 S. E. 663. 
III. EFFECT OF ACCORD AND 
SATISFACTION. 

An executory contract, oral or writ- 
ten, may be accepted in satisfaction of 
a . pre-existing demand or controversy, 
and when so accepted the original de- 
mand or controversy is then wiped out; 
it is satisfied; and the right of action 
for it is gone, albeit it may be that out 
of the transaction designed as a satis- 
faction of the original wrong a new 
cause of action may arise. Rector v, 
Hancock, 127 Va. 101, 102 S. E. 663. 

Matters Contemplated by Agreement 
—Intention of Parties— Extrinaic Evi- 
dence. — An accord and satisfaction op- 
erates as a bar only in regard to mat- 
ters contemplated by the agreement. 
Whether it does operate must be de- 
termined from the intention of the par- 
tics as gathered from the agreement, 
and not from matters dehors the writ- 
ing. But extrinsic evidence is admis- 

—3 



sible to show the circumstances sur- 
rounding the parties at the date of 
the agreement, the nature of the 
transaction to which it was designed 
to apply, keeping in view the particu- 
lar purposes to be effected, and giving 
to the terms employed their ordinary 
and usual meaning. Moore v, Hope 
Natural Gas Co., 76 W. Va. 649, 653, 
86 S. E. 564. 

Matters Unknown at Time of Exe- 
cution.^ — "An accord and satisfaction 
does not operate as a bar to matters 
unknown to the parties at the time of 
its execution. To give it that effect 
might work manifest injustice, and 
impose upon the releasor an instru* 
ment to which he did not assent.'* 
Moore v. Hope Natural Gas Co., 76 
W. Va. 64», 654, 86 S. E. 564. 

Careless and Negligent Acts. — 
"Whether the receipt was intended to 
and in fact does absolve defendant 
from liability for the natural and un- 
avoidable consequences of an act 
carefully and prudently done by virtue 
of the grant, it would not have that 
effect or so operate if such acts were 
carelessly and negligently performed. 
From such acts, though occasioned 
while he is engaged in the exercise of 
a lawful granted right, a defendant can 
not by contract exonerate himself. 
Maslin v, .B. & O. R. R. Co. 14 W. 
Va. 180; Brown v, Adams Exp. Co., 
15 W. Va. 812; Berry v. West Virginia, 
etc., R. Co.. 44 W. Va. 538, 30 S. E. 
143; Johnson v. Richmond, etc., R. Co., 
86 Va. 975, 11 S. E. 829; Shannon v. 
Chesapeake, etc., R. Co., 104 Va. 645, 
52 S. E. 376." Moore v, Hope Natural 
Gas Co., 76 W. Va. 649, 653, 86 S. E. 

564. 

Accord and Satisfaction ¥rith Joint 
Trespasser.— Barnes W. Va. Code, p. 

j 1157, ch. 136, § 7. 

! Person Conunitted for Misdemeanor 
May Be Discharged on Acknowledg- 
ment of Satisfaction by Party Injured 
— Va. Code 1919, § 849. 

Part Performance of an Obligation, 
Accepted in Satisfaction Extinguishes 



34 



Accord and Satisfaction 



it^— Va. Code 1919, § 5765. See Rob- 
inett V. Taylor, 121 Va. 583, 592, 93 S. 
E. 616. 

IV. PLEADING AND PRACTICE^ 

LimitatlDn of Actions. — ^Where a 
contract constitutes an accord and sat- 
isfaction, limitations independent of the 
principal transaction will not run. 
Rector v, Hancock, 127 Va. 101, 102 S. 
E. 663. 

Proof of Admissible under General 
Issue. — In an action on simple contract, 
proof of accord and satisfaction of a 
disputed claim, is admiissible under the 
general issue without specification. 
Shore V. Powell, 71 W. Va. 61, 76 S. E. 
126. 

"Full or general payment before suit 
brought, or a discharge by an accord 
and satisfaction, is admissible, under 
the general issue, without description 
thereof in a bill of particulars, when it 
is matter :of defense." Schwartz z/. 
Clark, 86 W. Va. 244, 246, 103 S. E. 
47. 

In an action of detinue to recover a 
certificate of stock pledged to secure 
payment of a debt, in which the pledge 
and non-payment of the debt are relied 
upon by way of defense, in a special 
plea, proof of a release of the pledge, 
or a discharge thereof by an accord 
and satisfaction, is admissible under 
the issue made by a general repHcation 
to the special plea. Schwartz v, Clark, 
86 ;W. Va. 244, 103 S. E. 47. 

The plea of accord and satisfaction 
must show some consideration moving 
toward plaintiff, or, in other words, 
that plaintiff obtained something of 
value by the new agreement. Frank & 
Sons V, Gump, 104 Va. 306, 308, 51 S. 
E. 358. 

Parol Evidence. — An executed or 
fully performed contemporaneous ver- 
bal agreement for the discharge of a 
note, as distinguished from an execu- 



tory contract for the same purpose, can 
not be shown by parol, and will not con- 
stitute a good defense in an action 
upon the note, except in so far as such 
contract, when fully performed by the 
maker of the note, and accepted as 
such by the payee, amounts to an ac- 
cord and satisfaction. The collateral 
contract must have been executed in the 
sense that something else than money 
has been actually given and received in 
satisfaction of the debt. When this has 
been done, the debt has been dis- 
charged. Rector v. Hancock, 127 Va. 
101, 102 S. E. 663. 

Until there has been an acceptance 
and consequent discharge of the writ- 
ten obligation to pay money, it matters 
not whether the parol contract remains 
executory or has been fully executed 
so far as the rule as to parol evidence 
is concerned, because in either case the 
purpose ds to prove a contract different 
from that which is evidenced by the 
writing. Of course, an executed con- 
tract will generally be of much more 
value to the defendant as a counter- 
claim or offset agfainst an action on the 
written obligation than a contract 
which still remains executory; but nei- 
ther one can be engrafted by parol 
upon such obligation so as to vary its 
terms in regard to matters completely 
covered by it. Rector v. Hancock, 127 
Va. 101, 102 S. E. 663. 

In the instant case, if the bill had al- 
leged that subsequent to the execution 
of the notes, the defendant accepted 
the possession of the property and the 
services of the complainants in satis- 
faction of the notes and afterwards re- 
fused to release the deed of trust, pa- 
rol evidence would have been admissi- 
ble to prove such acceptance, as this 
would simply be proving by parol an 
accord and satisfaction equivalent tO" 
payment, which is aways permissible. 
Rector v. Hancock, 127 Va. 101, 114,. 
102 S. E. 663. 



ACCORDING TO LAW.— "When the court directs that a bond be executed 
conditioned 'according to law/ it has in its mind in the vast majority of in- 
stances just such a bond as was executed in this case; a bond to answer all 
costs and damages that may be incurred by reason of suing out the injunction 
in case the same shall be dissolved." Columbia Amusement Co. v. Pine Beach 
Invest. Corp., 109 Va. 3»5, 63 S. E. 1002. See post, BONDS; INJUNCTIONS. 

ACCOUNTS AND ACCOUNTINa 

l^I. Acconnt Defined, 36. 

L Various Kinds of Accounts, 36. 

A. Accounts Stated, 36. 

1. In General, 36. 

2. Retention of Amount Rendered Without Objection, 37. 

a. In General, 37. 

b. Whether Doctrine Restricted to Merchants, 37. 

B. Settled Accounts, 38. 

C. Banking Accounts, 38. 

D. Book Accounts, 38. 

F. Accounts of Fiduciaries, 38. 

^. In General, 38. 

1. Administrators' and Executors' Accounts, 38. 

2. Agents' Accounts, 38. 

3. Guardians' Accounts, 3«. 

4. Partnership Accounts, 38. 

5. Trustees' Accounts, 38. 

G. Accounts of Public Officers, 38. ' 

H. Accounts of Public Service Corporations, 38. 

n. Impeaching Settled on Stated Accounts, 38. 

A. In General, 38. 

B. When Subject to Impeachment, 39. 

C. Surcharging and Falsifying, 39. 

m. Equity Jurisdiction, 40. 

A. In General, 40. . 

B. Persons Subject to Accounts, 41. 

10. Agents, 41. 

IV. Proceedings to Obtain an Accounting, 4i. 

B. Officers Taking Account — Commissioner in Chancery, 41. 

C. When an Account Will Be Ordered, 42. 

1. In General, 4?. . I 

CYa, Parties, 42. . 

C54. Pleading, 42. 

D. Procedure before the Commissioner, 43. 

1. In General, 43. 

2. Notice of Taking Account, 43. 

3. Evidence, 43. 

F. Report of Commissioner or Master, 43. 

G. Objections and Exceptions, 44. 
I. Resubmission, 44. 

35 



36 



Accounts and Accounting 



V. Actions on Account, 44. 

A. In General, 44. 

B. Filing Copy of Account, 44. 

VI. Action of Account, 44. 

Vn. Oommissioner of Accounts, 45. 

Vm. State Accountant and State Board of Accountancy, 45. 

IX. Certified Public Accountants, 45. 

X. Money of Account, 45. 

XI. Fraudulent Entries in Accounts, 45. 

CROSS REFERENCES. 

See the title ACCOUNTS AND ACCOUNTING, vol. 1, p. 82, and refer- 
ences there given. In addition, see post, AGENCY; ASSIGNMENTS; AS- 
SUMPSIT; DOCUMENTARY EVIDENCE; EQUITY; EXECUTORS 
AND ADMINISTRATORS; GUARDIAN AND WARD; JOINT TEN- 
ANTS AND TENANTS, IN COMMON; LARCENY; LIMITATION OF 
ACTIONS; MINES AND MINERALS; PARTNERSHIP; RECEIVERS: 
SHERIFFS AND CONSTABLES; TRUSTS AND TRUSTEES. And see 
ACCOUNT. As to open account as being a chose in action, see post, AS- 
SIGNMENTS. As to account as evidence, see post, DOCUMENTARY EVI- 
DENCE. As to settlement of accounts of committees of insane persons, see 
post, INSANITY. As to interest on accounts, see post, INTEREST. As to 
account stated between master and servant, see post, MASTER AND SERV- 
ANT. As to account and statement of claim in mechanic's lien proceeding, 
see post, MECHANICS* LIEN. As to notice of motion for judgment upon ac- 
count, see post, MOTIONS. As to bill for accounting, see post, PARTNER- 
SHIP. As to settlement of accounts between partners, see post, PARTNER- 
SHIP. As to motion to surcharge accounts of receivers, . see post, RECEIV- 
ences there given. In addition, see post, AGENCY; ASSIGNENTS; AS- 
ERS. As to reference of accounts, see post, REFERENCE AND COMMIS- 
SIONERS. 



yjL. ACCOUNT DEFINED. 

"The word 'account' has more than 
one meaning. It is a reckoning or 
computation or written or printed 
statement of facts and occurrences, a 
recital of transactions, which would 
give it a broader meaning." Diebold 
& Sons' Stone Co. v. Tatterson, 115 
Va. 766, 772, 80 S. E. 585. 

I. VARIOUS KINDS OF AC- 
COUNTS. 

A. ACCOUNTS STATED. 

1. In General. 

Generally, where persons who have 
had previous transactions of a mone- 
tary character agree that the account 
representing the transactions and the 
balance shown are correct, and the 
debtor expressly br impliedly prom- 



ises to pay such balance, the account 
thereby becomes an account stated. 
Hoover-Dimeling Lumber Co. v, Neill, 
77 W. Va. 470, 87 S. E. 855. 

"To constitute an account stated, 
there must have been a settlement sat- 
isfactory to the parties interested, and 
concurrence by them in the result 
thereof, and a promise by the debtor 
express or implied to pay the balance 
so ascertained to be due. The meet- 
mg of minds is as essential to the ex- 
istence of an account stated as such 
concurrence is in any other agree- 
ment. Both must assent to the cor- 
rectness of the account and the bal- 
ance due. Such we find to be the es- 
sential prerequisite of an account 
stated. Robertson v, Wright, 17 Gratt. 
(58 Va.) 534; McNeel v. Baker, 6 W. 



Accounts and Accounting 



37 



Va. 153; McCarty v, Chalfant, 14 W. 
Va. «31; McGraw v. Trader's Nat. 
Bank, 64 W. Va. 509; 63 S. E. 398; 
Camp V, Wilson, 97 Va. 266, 274. 33 
S. E. 591." Hoover-Dimeling Lumber 
Co. V, Neill, 77 W. Va. 470, 473, 87 
S. E. 955. 

An account rendered becomes an ac- 
count stated only when it has been 
examined by the parties, and the bal- 
ance admitted, without having been 
paid. McGaw v. Trader's Nat. Bank, 
64 W. Va. 509, 63 S. E. 398. 

Conchisiveness. — See post, "Im- 
peaching Settled or Stated Ac- 
counts," II. 

Sufficiency of E^dence. — In First 
Nat. Bank v. Bank, 72 W. Va. 700, 79 
S. E. 649, the judgment of the lower 
court that the defendant was not in- 
debted to plaintiff on an account 
stated was affirmed as being supported 
by the facts proven. 

S. Retention of ' Account ' Rendered 
without ObjecticMi* 

a. In Genend. 

The failure to dispute an account 
rendered, after the lapse of a reason- 
able time, amounts to an admission of 
its correctness. Buchanan t/. Higgin- 
botham, 123 Va. 662, 97 S. E. 340; 
Fayette Liquor Co. v. Jones, 75 W. 
Va. 119, 83 S. E. 726; McGraw v. 
Trader's Nat. Bank, 64 W. Va. 509, 
63 S. E. 398. 

Objections to accounts rendered, 
which will prevent them from being 
deemed stated accounts must be made 
within a reasonable time^ Buchanan 
V. Higginbotham, 123 Va. 662, 97 S. 
E. 340. 

Uncontroverted proof of such an ad- 
mission IS sufficient basis for the re- 
covery on the account without re- 
sorting to the original entries or other 
proof. Fayette Liquor Co. v. Jones, 
75 W. Va. 119, 126, 83 S. E. 726. 

Rebuttable Presumption. — Failure to 
object within a reasonable time to an 
account rendered, amounts only to a 



rebuttable admission, not to an 
estoppel. Laraway v. Croft Lumber 
Co., 75 W. Va. 610, 512, 84 S. E. 333. 

When Rule Inapplicable. — The rule 
that an account rendered and retained 
an unreasonable time, without objec- 
tion, becomes an account stated, ap- 
plicable as between merchant and 
merchant, and principal and agent, 
is inapplicable to monthly accounts 
rendered by one of the parties for 
money and goods advanced to the 
other pending the execution by the 
other of a logging contract. And at 
the completion of such contract the 
party to whom such accounts are so 
rendered is not estopped to dispute the 
correctness of items therein not previ- 
ously objected to. Dodge v. Brown, 
74 W. Va. 466, 468, 82 S. E. 262. 

Necessity for Pre-Existing Debt or 
Liability^ — Where there is no pre- 
existing debt or liability, the rendering 
of an account, to one who keeps it 
without objection, does not make an 
account stated. Cooper v. Upton, 60 
W. Va. 648, 64 S. E..523; S. C, 65 W. 
Va. 401, 64 S. E. 527. 

There can be no account stated 
where there is no pre-existing debt or 
liability. Cooper v. Upton, 60 W. Va. 
648, 64 S. E. 523. 

What Account Determines.— An ac- 
count stated, in the absence of fraud, 
mistake, error or omission, determines 
only the amount of the debt when a 
liability exists. Alone, it can not cre- 
ate a liability where none previously 
existed. Cooper v. Upton, 60 W. Va. 
648, 64 S. E. 523; S. C, 65 W. Va. 401, 
64 S. E. 527. 

b. Whether Doctrine Restricted to 
Merchants. 

While the doctrine as to accounts 
stated may originally have had its origin 
in transactions between merchants, it 
has quite generally been extended to 
all cases where the relation of debtor 
and creditor exists. Buchanan v. Hig- 
ginbotham, 123 Va. 662, 97 S. E. ^^40. 



38 



Accounts and Accounting 



"Some courts have limited the nile, 
that an account may become stated by 
silence from which acquiescence may 
be inferred, to accounts between mer- 
chants only; but even though an ac- 
count rendered between others than 
merchants may not become technically 
an account stated, we think that it is 
nowhere doubted that the evidence of 
such retention of objection, between 
parties other than merchants, may be 
.taken to show an implied admission 
ot acquiescence in its correctness, the 
weight of the testimony being for the 
consideration of the jury, under the 
pircumstances of the particular case." 
Buchanan v, Higginbotham,- 123 Va. 
662, 666, 97 S. £. 340. 

• "In Virginia, it has been settled 
since the case of Townes v, Birchett, 
12 Leigh (31> Va.) 173, that the doctrine 
is not restricted to merchants, and it 
18 there held that the rule is not con- 
€ned to accounts rendered by mer- 
chant to merchant of mutual dealings 
between them as merchants, much less 
bfKtween merchants abroad and mer- 
chants at home." Buchanan v. Hdg- 
ginbotham, 123 Va. 662, 667, 97 S. E. 
340. 

. Accounts between Banker and Cus- 
tomer. — The rule that an account ren- 
dered and retained for a long time 
without objection beconies an account 
stated is, as a general proposition, in- 
applicable in Virginia and West Vir- 
ginia, except as between merchant and 
merchant, and principal and agent, with 
mutual accounts. Between banker and 
customer some superior- equity must 
intervene in order to preclude the cus- 
tomer from objecting to an illegal and 
unauthorized charge against him. Mc- 
Graw V. Trader's Nat. Bank, 64 W. 
Va. 509, 63 S. E. 398. 

B. vSETTLED ACCOUNTS, 

When an account is paid it becomes 
a settled account. McGraw v. Trader's 
Nat. Bank, 64 W. Va. 509, 63 S. E. 
398. 



C. BANKING ACCOUNTS. • 

See post, BANKS AND BANK- 
INO. 

D. BOOK ACCOUNTS. 

See post, DOCUMENTARY EVI- 
DENCE. 

F. ACCOUNTS OF <FIDUCIARIES. 
^^, In General 

Va. Code 1919, §§ 5401-5440; Barnes 
W. Va. Code, pp. 994-996, ch. 87, §§ 3, 
67, 9. 

1. Administrators' and Executors' Ac- 

counts. 

See post, EXECUTORS AND AD- 
MINISTRATORS 

2. Agents' Accounts. 

See post, AGENCY. 

8. Guardians' Accounts^ 

See post, GUARDIAN AND 
WARD. 

4. Partnership Accounts. 

See post, PARTNERSHIP. 

5. Trustees' Accounto. 

See post, TRUSTS AND TRUS- 
TEES. 

G.. ACCOUNTS OF PUBLIC OFFI- 
CERS. ! 

Barnes W. Va. Code, p. 122, 123, ch. 

10, B, §§ 2-6. 

H. ACCOUNTS OF PUBUC SERV- 
ICE CORPORATIONS. 

Barnes W. Va. Code, p. 228, ch. 15, 
O, § 26. 

11. IMPEACHING SETTLED OR 

STATED ACCOUNTS. 

A. IN GENERAL. 

An account stated by the parties is 
not generally conclusive. Hoover- 
Dimeling Lumber Co. v. Neill, 77 
W. Va. 470, 87 S. E. 855. 

An account stated l^ a commiasioner 
under an order of reference entered in 
an action at law, while not conclusive 
against the parties, will be treated as 
prima facie correct; and on him who 



Accounts and Accounting 



39 



challenges its accuracy or justness de- 
volves the duty of showing it to be un- 
just ■ or inaccurate. Hoover-Dimeling 
Lumber Co. v. Ncill, 77 W. Va. 470, 
87 S. E. 855. 

Presumption of Correctness. — An ac- 
count stated affords presumptive . evi- 
dence of the accuracy and correctness 
of the charges therein stated, and the 
burden of proof rests on him who chal- 
lenges the verity of such account. 
Hoover-Dimeling Lumber Co. v. 
Naill, 77 W. Va. 470, 87 S. E. 855. 

"When fiduciaries have settled their 
accounts in a chancery suit pending 
for that purpose, and such settlements 
have been duly confirmed, from time 
to time, by decree of court, they are 
presumed to be correct and can not be 
opened except upon a proper proceed- 
ing filed in due time, in which the er- 
rors complained of must be specifically 
pointed out, and the parties affected 
thereby given an opportunity to be 
heard. TurnbuU v. Buford, 119 Va. 
304, 307, 89 S. E. 233. 

B. WHEN SUBJECT TO IMPEACH- 
MENT. 

Fraud, Mistake or Error. — An ac- 
count stated by the parties may be im- 
peached and corrected, for fraud, mis- 
take or error in the terms composing 
It or the balance ascertained. While 
the agreement of the parties operates 
as an admission that the account is 
correct, it does not create an estoppel 
and so preclude the right to inquire 
further into its merits, unless the po- 
sition of the other party has thereby 
been altered to his prejudice. Hoover- 
Dimeling Lumber Co. v. Neill, 77 W. 
Va. 470, 475, 87 S. E. 855. 

Settled or stated accounts can not 
be opened or corrected except on the 
ground of fraud, accident, mistake or 
omission; and the burden is on the 
party seeking to impeach the account 
to prove the existence of such fraud, 
accident, mistake or omission, by clear 
and convincing evidence. Chapman v. 
Liverpool Salt, etc., Co., 57 W. Va. 
395, 50 S. E. 601. 



C. SURCHARGING AND FALSI- 
FYING 

A biill filed by a board of supervisors 
of a county against a county treasurer 
charging that he had made certain set- 
tlements with the board which were er- 
roneous, and pointing out the errors 
complained of by reason of which he 
liad failed to account for funds due the 
county from delinquent taxes, and had 
charged a greater commission on cer- 
tain funds than the law allows, and 
praying for a reference to a commis- 
sioner to settle the accounts of the treas- 
urer, and that he be required to produce 
before such commissioner his books and 
papers to enable him properly to state 
the accounts, and that he be required 
to pay the amount found by him, and 
for general relief, is in no sense a bill 
of discovery, but a bill to surcharge 
and falsify the accounts of the treas- 
urer, and is subject to the rule govern- 
ing such bills v/hich requires the spe- 
cific grounds of surcharge and falsifica- 
tion to be stated in the bill. Board v, 
Powell, 106 Va. 751, 5« S. E. 812. 

If, upon a general bill for an. account, 
the defendant relies upon and proves 
a prior settlement in pais of the mat- 
ters in dispute, the complainant should 
be allowed to amend his bill, if de- 
sired, and to surcharge and falsify the 
stated or settled account by pointing 
out or indicating specifically any item? 
of error, mistake or omission existing 
therein. Branner v, Branner, 108 Va. 

660, 63 S. E. 952. 

Procedure.— "Our procedure with re- 
spect to surcharge and falsification of 
settled accounts is liberal and simple. 
As far back as Shugart v, Thompson, 
10 iLeigh (37 Va.) 434, 452, it was held 
that where on order of account proofs 
are adduced, which, though they do 
not sustain the specific objections taken 
to the bill, ascertain that the settle- 
ment may be justly surcharged in other 
respects, although according to the 
strictest and most formal practice the 
plaintiff may be required to amend his 
bill and urge therein the objections 



40 



Accounts and Accounting 



made -to the settlement shown by the 
evidence, yet it is competent •for the 
court to dispense with this proceed- 
ing, and permit the plaintiff to proceed 
in respect to the objections shown by 
the evidence in like manner as if they 
had been noticed by the bill. But if 
the defendant objects that he was sur- 
prised by the new objections to the ac- 
count, the court may and ought to give 
him time to combat them; and if he 
urge the privrilege he would have by 
answer to an amended bill, to explain 
and defend the account in these re- 
spects, such privilege should be se- 
cured to him, by allowing him to file 
his affidavit containing such explana- 
tion and defense, and by giving to such 
affidavit the like credit and effect, as 
his answer containing the like matter 
would be entitled to." Miller v. Smith, 
109 Va. 651, 65«3, 64 S. E. 956. 

FSnality of Decree. — When the e^ 
parte settlements of a trustee have been 
surcharged and falsified by a bill filed 
for that purpose, and the decree of the 
trial court has been affirmed by the 
supreme court with respect to all 
items of surcharge and falsification, it 
is a finality not only with respect to 
the particular items to which the at- 
tention of the court was called, but 
with respect to all the accounts which 
the trustee had settled before the in- 
stitution of the suit. New items ex- 
isting when the former decree was 
made can not, as a rule, be added by 
the trial court when the case is re- 
manded. The former adjudication ap- 
plies not only to matters actually then 
adjudicated, but to every point which 
properly belonged ta the subject of 
litigation, or which the parties, exer- 
cising reasonable diligence, might have 
brought forward at the time. Miller v. 
Smith, 109 Va. 651, 64 S. E. 956. 

III. EQUITY JURISDICTION. 

A. IN IGENERAL. 

The general rule is that courts of eq- 
uity will take jurisdiction of suits for 
the settlement of accounts where the 



accounts are mutual, extending over a 
long period of time, intricate, and com- 
plicated. Croft Land Co. v. Royal 
Block Coal Co., 87 W. Va. 570, 105 S. 
E. 799. 

It seems to be well settled that, in 
matters of account growing out of 
privity of contract between parties, not 
only where the accounts are mutual 
and intricate, but also where the ac- 
counts are all on one side, and a dis- 
covery is sought which is material to 
plaintiff's relief, equity has jurisdic- 
tion. Belcher v. Big Four Coal, etc., 
Co., 68 W. Va. 716, 719, 70 S. E. 712. 

An indebtedness arising because of 
a mistake made in the settlement of ac- 
counts which does not involve the re- 
statement of such accounts, or which 
arises from the failure to include in 
such settlement a proper item, may 
be recovered in an action at law with- 
out resort to a suit in equity to sur- 
charge and falsify the settlement. State 
V. Carfer, 83 W. Va. 331, 97 S. E. 825. 

Whether or not a court of equity 
has jurisdiction in a mere matter of ac- 
count between two parties must be de- 
termined by the facts of the particular 
case. Oglesby Co. v. Ould Co., 117 
Va. 546, 85 S. E. 475. 

Where a fiduciary relation exints be- 
tween the parties, and a duty rests upon 
the defendant to render an account to 
the plaintiff, equity will entertain ju- 
risdiction of a suit for an accounting, 
although the account is neither mutual 
nor complicated. Wilson v. Kennedy, 
63 W- Va. 1, 59 S. E. 736. See post. 
TRUSTS AND TRUSTEES. 

'If there is ^ relation of principal 
and agent, and the matter as to which 
an accounting is sought are peculiarly 
within the knowledge of the latter, 
there is jurisdiction in equity as well as 
in courts of law." Sperry v. Premier 
Pocahontas Collieries Co., 87 W. Va. 
223, 225, 104 S. E. 486. 

A bill for an accounting filed by a 
principal against an agent whose duty 
it is to keep and render accounts to 
the plaintiflF, alleging failure to keep 



Accounts and Accounting 



41 



and render accounts of money coming 
into his hands, or becoming due from 
him, and wrongful conduct on his part 
rendering it difficult or impossible for 
the plaintiff to ascertain the true state 
of the account, sets up a good cause of 
action cognizable dn equity. Sperry v. 
Premier Pocahontas Collieries Co^ 
87 W. Va. 2^3, 104 S. E. 486. 

Acconntiiig Incident to Main Pur- 
pose of Suit.— **It is settled law that if 
the main purpose of the suit is to set- 
tle title or boundary to land and no 
other grounds of equity exist, account- 
ing and discovery of profits are merely 
incidents to the right of title, and eq- 
uity has no jurisdiction of the contro- 
versy.** Lockwood V, Carter Oil Co., 
73 W. Va. 175, 180, 80 S. E. 814. 

Mere confiict in claim to oil roy- 
alty does not assure equity jurisdiction 
to order an accounting. Peterson v. 
Smith, 75 W. Va. 553, 84 S. E. 250, 
wherein the bill did not make a case 
for an accounting. 

Necessity of computation of the 
quantity and value of coal mined and 
timber cut from land by a trespasser 
confers no right to an accounting in 
equity. The right to such an account- 
ing can neither precede nor assume 
the establishment of the trespass it- 
self. It is a sequence, dependent upon 
the existence of the trespass, and an 
issue of that kind belongs exclusively 
to courts of law in the absence of an 
independent equity such as only an 
equitable title rendering the legal 
remedies inapplicable, inadequate and 
inappropriate. Hudson v, I guano Land, 
etc., Co., 71 W. Va. 402, 76 S. E. 7»7. 

B. PERSONS SUBJECT TO AC- 
COUNTS. 

10. Agents. 

Where the relation is such that a 
confidence is reposed by the principal 
in his agent, and the matters for which 
an account is sought are peculiarly in 
the knowledge of the latter, equity will 
assume jurisdiction. Wilson v, Ken- 
nedy, 63 W. Va. 1, 2, 59 S. E. 736. 

A court of equity, under its general 



jurisdiction for the enforcement of 
trusts, has jurisdiction to settle and 
adjust accounts between pninoipal and 
agent at the suit of the principal 
against his agent where confidence is 
reposed in him by his principal, but, as 
a general rule, a bill for an account by 
the agent against his principal does not 
lie, as it is the duty of the agent and 
not of the principal to keep the ac- 
count, and usually there is no trust or 
confidence reposed in the principal. 
Davis V. Marshall, 114 Va. 193, 76 S. 
E. 316. 

Loss of Account Book. — While 
there are some excepfnons to the rule 
that an agent can not maintain a bill 
for an accounting against his principal, 
an agent seeking to ma/intain such a 
bill must allege in his bill the facts 
which bring him within some excep- 
tion to the rule. A general allegation 
that there are mutual, current and, in 
some instances, confused items of ac- 
count between them as principal and 
agent, unaccompanied by any account 
of the agent against principal, is not 
sufficient. An allegation that some of 
the accounts have been destroyed by 
an accidental fire does not relieve the 
situation of the agent, as the loss or 
destruction of account books or of 
items of account is not of itself a 
ground of equity jurisdiction. Davis 
V. Marshall, 114 Va. 193f, 76 S. E. 316. 

IV. PROCEEDINGS I TO OBTAIN 
AN ACCOUNTING. 

B. OFFICERS TAKING ACCOUNT 
—COMMISSIONER IN CHAN- 
CERY. 

See post, "In General," IV, C, 1.. 
And see also post, "Commissioner of 
Accounts," VII. 

Appointment, Removal, Power and 
Oath.— Barnes W. Va. Code, p. 1124, 
ch. 129, §§ 1, 2. 

Reference o£ AccountaL — ^Va» Code, 
1919, § 6179; Barnes W. Va. Code, p. 
1124, ch. 129, § 3. 

Same— In Vacation. — Barnes W. Va. 
Code, p. 1125, Qh. 129, § 5. 



42 



Accounts and Accounting 



Accounts in Actions at Law. — 

Barnes W. Va. Code, p. 1126, ch. 129, 
§ 10. 

C. WHEN lAN ACCOUNT WILL 
BE ORDERED. 

1. In General. 

When Deemed Necessary. — Under § 
3921, Code 1906 (Barnes Code, p. 1126, 
ch. 129, § 10), dn any case at law in 
which it may be deemed necessary the 
court may direct a commissioner in 
chancery or other competent person, 
either before or at the time of trial, to 
take and state an account between the 
parties^ whiich account when Ijhus 
stated shall be deemed prima facie cor- 
rect and may be given in evidence to 
the court or jury trying the case. 
Connell v. Yost, 62 W. Va. 66, 57 S. 
E. 299. 

To Enable Party to ICake.— An or- 
der for an account will not be awarded 
merely to enable a party to make out 
his case, or to reopen the investigation 
of the account of an indebtedness 
which has been previously settled by 
the parties with the aid of their coun- 
sel, and the integrity and correctness 
of which has not been impugned. Ham- 
ilton V, Stephenson, 106 Va. 77, 55 S. 
E. 577. 

Laches. — After the funds in a cause 
have passed beyond the control of the 
court, and the cause ds practically 
ready for a final decree, a court of eq- 
uity will not, at the instance of the 
counsel for some of the parties (who 
has paid no attention to the case for 
years, and whose clients have been, in 
the meantime, represented by other 
counsel) order an account to ascertain 
.what is due to him from his clients 
for services rendered in the cause. 
Miller v. Penniman & Bro., 110 Va. 
780, 67 S. E. 516. 

C^. PARTIES. 

In a suit by an assignee for an ac- 
counting of certain coal royalties, ^ 
part of the personal estate devised to 
the assignor and widow for life, sub- 
ject to debts, with remainder dn equal 



proportion to plaintiff, a son, and an- 
other son, named also as executors of 
the will, with power gdven them to 
manage and control said personal es- 
tate, the remadndermen in their indi- 
vidual rights and as executors of said 
will are necessary parties to such suit, 
and because of their absence the bill 
is fatally defective on demurrer. Potect 
V, Imboden, 73 W. Va. 567, 80 S. E. 
958. 

Where a mother controls and man- 
ages a farm, and takes all the rents 
and profits arising therefrom, her sons 
who simply assist her in running the 
farm are not proper parties to a suit 
against the mother to have an ac- 
count of such rents and profits. Watts 
V. Watts. 104 Va. 269. 51 S. E. 359. 

C54. IPLEADING. 

Where an amended bill relates only 
to certain items of debit and credit in 
an accounting to be had between the 
parties, and the case on its merits has 
been fully matured for heanng, it is 
unnecessary to await the answer of the 
defendant to the amended bill before 
adjudicating the principles of the cause 
and directing such accounting. Gay v, 
Gibson, 85 W. Va. 226, 101 S. E. 365. 

In a bill for a general accounting 
specific pleading is not required; it is 
sufficient to show the relation of the 
parties which entdtles complainant to 
the relief, and a general statement of 
the matters pertaining to which the 
accounting is sought will be sufficient. 
McGraw v. Trader's Nat. Bank, 64 W. 
Va. 509, 5ie, 63 S. E. 398. 

In a suit for an accounting against 
lessor and lessee in an oil and gas 
lease, by one claiming a portion of 
the oil and gas under an alleged deed 
or contract from the lessor, and which 
contract besides a covenant to convey 
contains also a provision for the pay- 
ment to the vendor of $200.00, for each 
and every well drilled and completed 
as stipulated, within ninety days from 
the date of such completion, and 
which by the terms of the contract is 



Accounts and Accounting 



43 



to be of the essence thereof, default in 
such payment to render the contract 
null and vioid> excusing: performance 
thereof, if the hill seeking such ac- 
counting of the oil or gas produced 
fails to allege payment of the sum stip- 
ulated and performed by him of all 
other conditions precedent, it is fatally 
defective, and bad on demurrer, and if 
further amendment is declined the bill 
is properly dismissed. Freeman v. 
Carnegie Natural Gas Co., 74 W. Va. 
83, 87, 81 S. E. 572. 

Avennent that Equitable Relief 
Requisite without Facts Demurrable. 

—Where the bill shows that the specific 
accounts can be fairly determined in a 
court of law, and discovery is unneces- 
sary, mere general averments in the 
bill that adequate relief can be obtained 
only in a court of equity, without alle- 
gation of facts sufficient for discovery, 
or facts showing discovery is neces- 
sary, or complexity or intricacy of 
mutual accounts, which a court of law 
could not properly adjudicate, will not 
be sufficient to confer equity jurisdic- 
tion, and a demurrer to the bill should 
be sustained. Croft Land Co. v. Royal 
Block Coal Co., 87 W. Va. 570, 105 S. 
E. 799. 

Bin Not Showing Right to Relief in 
Equity. — Where a bill seeks to assert a 
purely legal claim, and alleges a neces- 
sity for an accounting between two co- 
defendants in order to ascertain if the 
plaintiff in the bill is liable to one of 
the codefendants as guarantor of the 
ether defendant's obligation, and it ap- 
pears from an exhibit filed with the 
bill that the liability, when so ascer- 
tained, could not be set off against the 
plaintiff's demand at law, and there are 
no other grounds of equity jurisdiction 
to sustain the bill, a demurrer should 
be sustained. Croft Land Co. v. Royal 
Block Coal Co., 87 W. Va. 570, 105 S. 
E. 799. 



I, — Bill for an ac- 
counting and to set aside deeds join- 
ing as defendants all beneficiaries of 



fraud held not multifarious. Koen v, 
Koen, 86 W. Va. 503, 103 S. E. 322. 

D. PROCEDURE BEFORE THE 
COMMISSIONER. 

1. In GeneraL 

Barnes W. Va. Code, p. 1125, ch. 
129, §§ 7, 8. 

Where an account is taken by a com- 
missioner, the judge is well within his 
rights in going over the commission- 
er's report with him, and assisting him 
in testing its accuracy in the light of 
exceptions and papers filed therewith, 
and his action in this respect is to be 
commended. Herrell v. Board, 113 Va. 
594, 75 S. E. 87. 

Instruction by Judge. — Barnes W.Va. 
Code, p. 1125, ch. 129, § 6. 

2. Notice of Taking Account. 

Va. Code, 1919, § 6180; Barnes W. 
Va. Code, p. 1125^ ch. 129, § 4. 

Where a defendant and his counsel 
were present throughout the taking of 
an account by a master, and partici- 
pated in all the proceedings before him, 
and the report of the master was re- 
committed to him at the instance of 
the defendant, to consider his former 
report in connection with exceptions 
filed by the defendant, and to amend 
the same or make a new report based 
on his former report and the deposi- 
tions theretofore taken, and the papers 
and records filed, and in the light of 
sa5d exceptions and calculations, and 
evidence, to make such report as, in his 
judgment, was proper, the report made 
in pursuance thereof can not be said 
to have been made without notice to 
the defendant. Herrell v. Board, 113 
Va. 594, 75 S. E. 87. 

3. Evidence. 

Proof of Debt l^ Affidavit. — Barnes 
W. Va. Code, p. 1126, ch. 129, § 11. 

F. REPORT OF COMMISSIONER 
OR MASTER. 

See post, REFERENCE. 
Hearing on Report. — Barnes W. Va. 
Code, p. 1126, ch. 129, § 9. 



44 



Accounts and Accounting 



G. • OBJECTIONS AND EXCEP- 
TIONS. 

It is not equitable for a defendant to 
a bill of injunction (in whose favor a 
judgment at law was rendered, for a 
sum of money, which he had paid as 
security for the complainant), to ex- 
cept to a commissioner's statement of 
the debits and creddts between them, 
"to the time of the judgment; on the 
ground that, from the circumstances of 
the case, and conduct of the parties, 
they considered their accounts as 
closed, and nothing due on either 
side;" and, yet, to select and rely upon 
the judgment, as an item in his favor, 
in exclusion of the other items in the 
account. Foster v, Clarke, 5 Munf. 
(19 Va.) 430. 

I. RESUBMISSION. 

Barnes W. Va. Code, p. 1124, ch. 
129, § 3. 

V. ACTIONS ON ACCOUNT. 

A. IN GENERAL. ( 

By Assignee.— W. Va. Code, ch. 99, 
§§ 14-16. 

Severance of Causes of Actum. — 

While an account is assignable, a sin- 
gle cause of action can not be subdi- 
vided by various assignments, without 
the consent of the debtor, so as to en- 
able .each assignee to institute an ac- 
tion at law in his name for the part so 
assigned to him. Such subdivision is 
not in accord with the debtor's con- 
tract, and might subject him to many 
embarrassments and responsibilities 
not contemplated in his original con- 
tract. Phillips V, Portsmouth, 112 Va. 
164, 70 S. E. 502. 

Pleading. — An account filed with a 
declaration is no part of the declara- 
tion, and defects in the account can not 
be taken advantage of by demurrer. 
Norfolk V, Norfolk County, 120 Va. 
356, 91 S. E. 820. 

Time of Amendment. — In an account 
upon which a notice of motion for 
judgment was based the words "Long 
Branch" were used to desigrnate one 
of the places where the services were 



rendered. There was no such place, 
the proper designation being "Laurel 
Branch." Pending the examination of 
the plaintiff as a witness, attention was 
called to the error, and on motion of 
the plaintiff he was permitted to make 
the needed change over the objection 
of the defendant. Held: This was a 
mere immaterial misnomer, which did 
not in any way take the defendant by 
surprise, and that there was no error 
in the ruling of the trial court. Man- 
kin V. Aldridge, 127 Va. 761, 105 S. E. 
459. 

Burden of Proof. — The burden of 
proving that objection was made with- 
in a reasonable time rests upon the 
party contesting the account so ren- 
dered. Buchanan v, Higginbotham, 123 
Va. 662, 97 S. E. 340. 

In a proceeding by motion for judg- 
ment for the balance due on account, it 
was error to refuse an instruction that 
the burden was upon the plaintiff to 
prove his case by a preponderance of 
evidence, "and df he has not so proven 
his claim, you will find for the defend- 
ant as to any item therein which has 
not been so proven by the plaintiff." 
Mankin v. Aldridge, 127 Va. 761, 105 S. 
E. 459. 

Inquiry of Damages Unnecessary.— 
Va. Code, 1919, § 6132. 

B. FILING COPY OF ACCOUNT. 
When Account to Be Filed with 
Declaration.— Va. Code 1919, § 6090. 

.VI. ACTION OF ACCOUNT. 

I-n the' ancient and practically obso- 
lete common-law action of account, the 
only issue was liability, not for money 
but to account. The defendant could 
plead his i willingness to account and 
confess Jhis liability, or deny that he 
was ever under any duty to account, 
or plead that he had rendered a full 
account or set up a release, a bond 
given in satisfaction or the statute of 
limitations, when available. If he 
failed on an issue so made, judgment 
in the first instance was not rendered 
for any sum of money. It was, not 



Accounts and Accounting 



45 



that the plaintiff recover, but that the 
defendant render an account. The 
judgment was technically known as 
that of quod computet. After the en- 
try thereof the case went to auditors 
for a settlement of the account, and on 
the return of their finding judgment 
was Tendered for the amount ascer- 
tained by them. 1 Bac. Abr. 43, 54, 
inc.; 1 Chitty PI. (11 Am. lEd.) 488; 
Andrew's Stephen's PI. 78n. The ac- 
tion lay against guardians in socage, 
bailiffs, receivers, one merchant in fa- 
vor ,of another, partner against partner, 
and perhaps others. It was not in any 
sense like assumpsit, because it did 
not sound in damages. Mitchell v. 
Penny, 66 W. !Va. 660, 662, "66 S. E. 
1003. 

When Action of Account May B^ 
Maintamed. — Acts 1920, p. 28; Pollard's 
Code 1920, p. 713. 1 

VII. COMMISSIONER OF AC- 
COUNTS. 

Va. Code 1919, §§ «5401-5440; Barnes 



Code, ch. 137, § 6. See post, REFER- 
ENCE. 

VIII. STATE ACCOUNTANT AND 
STATE BOARD OF AC- 
COUNTANCY. 

Va. Code 1919, §§ 550-572; W. Va. 
Acts 1917, iReg. Sess. c. 59; W. Va. 
Code Suppl. 1918, § 306a, 306d, ch. 11, 
A, §§ 1-4. 

IX. CERTIFIED PUBLIC AC- 

COUNTANTS. 

Barnes Code, ch. 15 G, §§ 1-6. 

X. MONEY OF ACCOUNT. 

Va. Code 1919, §§ i5548-5550; Barnes 
W. Va. Code, p. 1014, ch. 96, §§ 1-3. 



XI. (FRAUDULENT ENTRIES! IN 
ACCOUNTS. 

Va. Code, 1919, § 4457; Barnes W. 
Va. Code, p. 1200, ch. 145, l§ 21. 



ACCOUNTS, CLAIMS AND DEBTS.— See ante, ACCOUNTS AND AC- 
COUNTING, p. 9, and see post, CLAIM; INDEBTED— INDEBTEDNESS. 
As to commissioner of accounts, see post, REFERENCE AND COMMIS- 
SIONERS. 

In Wyatt v, Norris, 66 W. Va. 667, 669, 66 S. E. 1016. it is said : "These ob- 
servations lead us to inquire: What is the ordinary understanding of the 
words accounts, claims and debts as used in this will? To be more specific, 
and to reach more nearly the case: Do these words ordinarily signify money 
on deposit in bank? Our answer is that they do not. In common acceptation, 
money in bank is considered as ready money, not as an account, claim or debt 
due to the depositor. Dabney v. Cottrell, 9 Gratt. (50 Va.) 572." 

ACCOUNTS STATED.— See ante, ACCOUNTS AND ACCOUNTING. 

Accretion. 

See the title ACCRETION, vol. 1, p. 103, and references there given. In addir 
tion, see post, BOUNDARIES; NAVIGABLE WATERS; WATERS 

AND WATERCOURSES. 



ACCRUE. — ^Accrue is defined to mean to come into existence, to become 
vested. Dunn v. Bank, 74 W. Va. 594, 599, 82 S. E. 758. See post, BANKS 
AND BANKING. 



ACKNOWLEDGMENTS. 

in. Necessity, 46. 

y^A. In General, 46. 

A. Between the Parties, 46. 

B. For Recordation, 46. 

C. For Admission in Evidence, 47. 

D. Instruments Requiring Acknowledgment, 47. 

IV. Who May Make, 48. 
V. Who May Take, 48. 

A. In General, 48. 

B. Beneficiary May Not Take, 40. 

C. Trustee May Not Take, 50. 

E. Validation of, 50. 

VI. Act of Taking Acknowledgment Is Judicial— Collateral or Di- 
rect Attack, 50. 

Vn. Married Women, 50. 

A. In General, 50. 

B. Privy Examination, 51. 

C. Certificate, 51. 

Vm. The Certificate, 5i. 

J^A. Necessity, 51. 

A. Sufficiency in General, 51. 

B. Presumption of Regularity, 54. 

C. Equivalent Expressions, 54. 
E. Certificate as Evidence, 54. 

Xn. Fees, 54. 

CROSS REPBRSNCES. 

See the title ACKNOWLEDGMENTS, vol. 1, p. 104, and references there 
given. As to enforcement of defectively acknowledged conveyance by wife, 
see post, HU^AND AND WIFE. As to taking acknowledgment as judicial 
act, see post, NOTARY PUBLIC. As to liability of notary for taking void or 
defective acknowledgment, see post, NOTARY PUBLIC. As to authority of 
officer to take and sufficiency of acknowledgment, see 3 Va. Law Reg«, N. S., 
492. 



III. NECESSITY. 

See post, "In General," VII, A. 

j/aA. IN GENERAL. 

Scfe Va. Code 1919, § 5204; Barnes 
Code, ch. 73, § 2. 

A. BETWEEN THE PARTIES. 

A deed or deed of trust, etc., may 
be good between the parties without 
a certificate of acknowledgment. 
Clarksburg Casket Co. v. Valleu Un- 
dertaking Co., 81 W. Va. 212, 215, 94 
S. E. 549; State v, Smoot, 82 W. Va. 

46 



63, 67, 95 S. E. 526, citing State v, 
Proudfoot, 38 W. Va. 736, 18 S. E. 
949; Board v. Dunn, 27 Gratt. (68 
Va.) 608, 623. 

B. FOR RECORDATION. 

Va. Code 1919, § 5204; Barnes Code, 
ch. 73, § 2. 

Deed or Deed of Trust— "A suf- 
ficient certificate of acknowledgment 
is essential to the recordation of a 
deed or deed of trust, and, without it, 
the copying of the instrument on the 
record book does not constitute con- 



ACKNOWtEDGMENTS 



47 



stnictive notice. As to creditors and 
purchasers without notice, it is void. 
Abney v. Ohio Lumber, etc., Co., 45 
W. Va. 446, 32 S. E. 266; Cox v, 
Wayt, 26 W. Va. 807; Ihrig v. Ihrig, 
78 W. Va. 360, 88 S. E. 1010." Clarks- 
burg Casket Co. v. Valleu Undertak- 
ing Co., 81 W. Va. 212, 216, 94 S. E. 
549. 

C. FOR ADMISSION IN EVI- 
DENCE. 

Not Admissible in Evidence unless 
Properly Acknowledged. — A deed, the 
execution of which is not proved other- 
wise than by a certificate of acknowl- 
edgment, reciting that it was acknowl- 
edged by the grantor before his dep- 
uty, as such deputy, and signed by the 
grantor himself, as clerk of a county 
court, is inadmissible as evidence. 
Webb V, Ritter, 60 W. Va. 193, 196, 
54 S. E. 484. 

An attested copy pf a deed not 
properly acknowledged and, therefore, 
not recordable, is not evidence in lieu 
of the original. Goad v. Walker, 73 
W. Va. 431, 436, 80 S. E. 873. 

Sufficient Compliance Renders Ad- 
missible as Evidence. — A deed pur- 
porting to convey land situated in 
West Virginia, acknowledged in the 
year 1872, in the city of New York, 
before a commissioner for the com- 
monwealth of Virginia, in the state of 
New York, recorded in West Vir- 
ginia in the county in which the land 
lies, and reacknowledged before an of- 
ficer competent to take acknowledg- 
ments of deeds conveying land sit- 
uated in West Virginia, after the 
commencement of the action in which 
its use is desired as evidence, is ad- 
missible, between the parties thereto 
and against all other persons except 
subsequent - - purchasers claiming the 
land and creditors seeking to charge 
it, under the same title. Webb v. 
Ritter, 60 W. Va. 193, 195, 54' S. E. 
484, 



D. INSTRUMENTS REQUIRING 
ACKNOWLEDGMENT. 

See ante, "Between the Parties," 
III, A; "For Admission in Evidence," 
III, C; post, "In General," VII, A. 

Candidate.— Va. Code 1919, § 154. 

Primary Candidate. — ^Va. Code 1919, 
§ 229. 

Trade-Mark or Brand for Timber. — 

Va. Code 1919, § 1449. 

Delinquent Land Proceedings. — 
Va. Code 1919, §§ 2476, 2495. 

Decreeing Capital Stock. — ^Va. Code 
1919, § 3781. 

Certificate of Incorporation. — Va. 
Code 1919. § 3851. 

Same— -New Charter after Dissolu- 
tion.— Va. Code 1919, § 3811. 

Same— Purcliases of Property and 
Franchises.- Va. Code 1919, § 3817. 

Same — ^Non-Stock Corporation and 
Amendment Thereof. — Va. Code 1919, 
§§ 3874, 3875. 

Consolidation of Corporations. — 
Va. Code 1919, § 3822. 

Amendment of Charter. — Va. Code 
1919, §§ 3779, 3780. 

Same— Railroad^-Va. Code 1919, § 
3859. 

Same — Public Service Corporatibn. 
— Va. Code 1919, § 3868. 

Articles of Association — Raflroad. 
— Va. Code 1919, § 3857. 

Same — Public Service. Corporation. 
— Va. Code 1919, § 3866. 

Marriage of Minor. — Va. Code 1919, 
§ 5078. 

Waiving Jointure. — Va. Code 1919, 
§ 5121. 

Conditional Sales.^Va. Code 1919, 
§ 5189, amended by Va. Acts 1920, p. 
398. 

Representatives.— Va. Code 1919, §§ 
5204; 5207. - 

Power of Attorney — Married 
Women.-^Va. Code 1919, § 6215; 
Barnes Code, ch. 73, §§ 2, 10. 

Same — Execution of bonds lot 
Surety Company.— Va. Code 1919, § 
4349. 



48 



Acknowledgments 



Plats to Lots.— Va. Code 1919, § 
5218; Barnes Code, ch. 73^ A. §.12; Va. 
Code 1919, § 5221. 

Agent to Conduct Mercantile Busi- 
ness.— Va. Code 1919, § 5223. 

Widow Renouncing Will. — Va. 
Code 1919, § 5276. 

Designation of Ghiardian. — Code 
1919, § 5317. 

Altered Deed^ — Although material 
alteration in a deed may have been 
with the consent of the grantors, the 
deed can not . operate to invest in the 
grantee land not covered by the origi- 
nal grant, without a redelivery of the 
deed by them, and, if it has been ac- 
knowledged before the alteration, the 
deed should be again acknowledged. 
1 Devlin on Deeds, § 462a. Waldron 
V, Waller, 65 W. Va. 605, 64 S. E. 964, 
967. 

IV. WHO MAY MAKE. 

Certificate of Incorporation — New 
Charter after Dissolution. — ^Va. Code 
1919, § 3811. 

Same— Purchaser. — Va. Code 1919, 
§ 3817. 

Same — Non-Stock Corporation 
Thereof.— Va. Code 1919, §§ 3874, 
3875. 

Articles of Association — Railroad. 
— Va. Code 1919, § 3857. amended by 
Va. Acts 1920, p. 305, but not as to 
this provision. 

Same — Public Service Corporation. 
— Va. Code 1919, § 3866. 

Amendment of Charter — Railroad. 
— Va. Code 1919, § 3859. 

Same — Public Service Corporation. 
— Va. Code 1919, § 3868. 

Agent for Married Woman. — Va. 
Code 1919, § 5215; Barnes Code, ch. 
663, § 3. ch. 73, § 6a. 

V. WHO MAY TAKE. 

A. IN GENERAL. 

Of Candidate.— Va. Code 1919, § 
154. 

Of Primary Candidate.— Va. Code 

1919, § 229. 



Trade-Mark or Brand.— Va. Code 
1919, § 1449. 

Delinquent Land. — ^Va. Code 1919, § 
2476. 

Commissioners. — Va. Code 1919, § 
2853; Barnes W. Va. Code, ch. 52, § 
13, ch. 73, § 3. 

Certificate Decreasing Capital Stock. 
— Va. Code 1919, § 3781. 

Certificate of Consolidation of Cor- 
porations. — Va. Code 1919, § 3822. 

Articles of Association — Railroad. 
— Va. Code 1919, § 3857, amended by 
Va. Acts 1920, p. 305, not as to this 
provision. 

Same— Public Service Corporation. 
— Va. Code 1919, § 3866. 

Power of Attorney to Execute and 
Revoke Bonds.— Va. Code 1919, § 
4349. 

Certificate of Incorporation. — Va. 
Code 1919, § 3851. 

Same — Of Purchaser. — Va. Code 
1919, § 3817. 

Same — NoU'-Stock Corporation and 
of Amendment Thereof. — ^Va. Code 
1919, §§ 3874, 3875. 

Amendment of Charter — Railroad. 
— Va. Code 1919, § 3859. 

Same-— Public Service Corporation. 
— Va. Code 1919, § 3868. 

Certificate for Amendment of Char- 
ter.— Va. Code 1919, §§ 3779, 3780. 

Conditional Sales.— Va. Code 1919, 
§ 5189, amended by Va. Acts 1920, p. 
398. 

Court or Clerk.— Va. Code 1919, § 
5204; Barnes Code, ch. 73, § 3. 

President of County Court — Barnes 
Code 1918, ch. 39, § 3a. 

Notary PuUic Connected with 
Bank.— W. Va. Acts 1919, ch. 60, p. 
249. 

By Justices of the Peace. — Barnes 
Code. ch. 50, §§ 5-7. 

Within United States.^Va. Code 
1919, §§ 5205, 5206; Barnes Code, ch. 
51, § 11, ch. 73, § 3. 

Of Representatives. — Va. Code 
1919, §§ 5204, 5207; Barnes W. Va. 
Code, ch. 73, § 3. 



Acknowledgments 



■49 



Of Corporations. — Va. Code 1919, 
§§ 5207, 5208 (Amended by Va. Acts 
1920, p. 586) Pollard's Code 1920, p. 
235, § 5209. 

Land Plats.— Va. Code 1919, § 5218; 
Barnes Code, ch. 73 A. § 12. 

Designation of Guardian. — Va. Code 
1919, § 5317; Barnes Code, ch. 82 § 4. 

A deputy dleik, being empowered 
by a statute of Virginia to "discharge 
any of the duties of the clerk," could, 
in his own name as such deputy, cer- 
tify acknowledgments to writings, 
whether intended for recordation in 
the office of his principal, or in any 
other county court clerk's office of 
Virginia. Goad v. Walker, 73 W. Va. 
431, 439, 80 S. E. 873. 

Deputy Clerk and Notary Public. — 

The offices of deputy clerk of a county 
court and notary public are not incom^ 
patible, and the clerk's acknowledg- 
ment to a tax deed, taken and certi- 
fied by a notary public who is also the 
clerk's deputy, is valid. Friedman v, 
Craig, 77 W. Va. 223, 87 S. E. 361. 

Deputy of Grantor. — A deed acknow* 
ledged by the grantor before his 
deputy, as such deputy, and signed by 
the grantor himself, as clerk of a county 
court, is not properly acknowledged. 
Webb V. Ritter, 60 W. Va. 193, 196, 54 
S. E. 484. But see next succeeding 
paragraph. 

"The rule forbidding a deputy clerk, 
as such, to certify the acknowledg- 
ment of his principal rests upon a mere 
technicality, the theory being that the 
deputy's act is the act of his princi- 
pal and the same, in effect, as if the 
principal had taken his own acknowl- 
edgment. But we can see no valid 
reason why a person, holding the of- 
fice of deputy clerk, may not take the 
chief clerk's acknowledgment in the 
capacity of notary public. We would 
certainly not be forbidden to do so be- 
cause of any supposed improper in- 
fluence arising out of his subordinate 



position." Friedman v. Craig, 77 W. 
Va. 223, 225, 87 S. E. 361. 

"A man can neither take his own 
acknowledgment nor the acknowledg- 
ment of another person to a deed, 
conveying property to him. For the 
latter proposition, Tavenner v. Bar- 
rett, 21 W. Va. '656, is pointed author- 
ity and it seems much clearer that n 
person, acting as an officer, can not 
take and certify his own acknowledg- 
ment as a private individual. Davis v, 
Beazley, 75 Va. 491; Beamon v. Whit- 
ney, 40 Me. 413. A deputy acts for, 
on behalf and in the name of, his 
principal. His act is, in law, the act 
of the principal." Webb v, Ritter, 60 
W. Va. 193,. 229, 54 S. E. 484. 

The mayor of a municipality within 
this state possesses no legal authority 
to take and certify acknowledgments 
to deeds or other writings; such au- 
thority being limited, by § 3, ch. 73, 
Code 1913, to the persons therein 
named. Zolsman v. Toltz, 74 W. Va. 
604, 82 S. E. 511. 

B. BENEFICIARY MAY NOT 
TAKE. 

See ante^ "In General," V, A. 

Clerk Who Is Beneficiary or Gran- 
tee. — A deed, the execution of which 
is not proved otherwise than by a 
certificate of acknowledgment, signed 
by the grantee, as clerk of a county 
court, is properly rejected when of- 
fered as evidence. Webb v, Ritter, 60 
W. Va. 193, 196, 54 S. E. 484. 

One who acts as agent of the bor. 
rower in procuring a loan, and is paid 
for his services out of the money 
procured, is not disqualified to take the 
acknowledgment of the borrower to a 
deed of trust given to secure such loan. 
Pence v. Jamison. 80 Va. 761, 94 S. E. 
383. 

Notary Who Is Employee or Agent 
of the Trustee.— The fact that the no^ 
tary who takes the acknowledgment of 
the grantors in a deed is the clerk, 



— 4 



50 



ACKNOWI^BDGMENTS 



agent, and employee of the trustee in 
the deed, and receives a salary for his 
services as such, does not affect his 
competency to take such acknowledg- 
ment and receive compensation there- 
for. Scott r. Thomas, 104 Va. 330, 51 
S. E. 829. 

C. TRUSTEE MAY NOT TAKE. 

See ante, "In General," V, A; "Bene- 
ficiary May Not Take," V, B. 

Notary Trustee in Deed of Trtttt.— 
A certificate of acknowledgment to a 
deed of trust is void, where the acknowl- 
edgment was tak^n and certified by 
a notary, who was designated in the 
deed as a trustee. Yates p. Ley, 121 
Va. 265, 92 S. E. 837. This case is 
distinguishable from Heeke v, Allan, 
127 Va. 165, 102 S. E. 655, as will ap- 
pear from the two succeeding para- 
graphs. 

A deed of bargain and sale was 
made, and the grantee therein, as a 
part of the same transaction, conveyed 
the property to a trustee to secure the 
deferred payments of the purchase 
money. The notary who took the 
grantor's acknowledgment to the deed 
of a bargain and sale was named a& 
trustee in the deed of trust, but had 
no other connection with or interest 
in the transaction. Held: That the 
acknowledgment was a valid acknowl- 
edgment. Heeke v. Allan, 127. Va. 65, 
102 S. E. 655. 

E. VALIDATION OF. 

By Ex-Service Men.-— Va. Acts 1920, 
p. 69, Pollard's Code 1920, p. 719. 

By Officials Who, Since Jan. 18, ISflO, 
Have Held Other Offices.— Va. Acts 
1920, p. 340. 

By Justices of the Peace, etc., 
Designated as "Police Justices."— Va. 
Acts 1920, p. 405, Pollard's Code 1920, 
p. 753. 

In Foreign Countries. — ^Va. Acts 
1918, p. 506, Pollard's Code 1920, p. 485. 

By Foreign Officials.— Va. Acts 1918, 
p. 108, Pollard's Code 1920, p. 358. 



Validation of Defective. — Barnes 
Code, ch. 73, § 11. 

VI. ACT OF TAKING AC- 

KNOWLBDGMBNT IS JUDI- 

CIAL— COLLATERAL OR 

DIRECT ATTACK. 

Taking and certifying the acknowl- 
edgment of a deed is regarded as a 
judicial act in this state, and can not 
be impeached even directly, save in a 
court of equity, and not then except 
for fraud. McCauley v. Grim, 115 Va. 
610, 79 S. E. 1041. 

Impeachment — Testimony of Officer. 
An officer taking an acknowledgment 
to a deed is incompetent as a witness 
in a collateral proceeding to impeach 
his official act. But in a direct pro- 
ceeding \o set aside the instrument for 
fraud, he is competent to prove that he 
was imposed upon and honestly led to 
believe that the person who acknow- 
ledged the instrument was in fact the 
person named in the instrument. Man- 
kin V. Davis, j82 iW. Va. 757, 97 S. E. 
296. 

VII. BfARRIED WOMEN. 

A. IN GENERAL. 

See ante, "Between the Parties," 
III, A. 

Power of Attorney — ^Necessity. — ^Va. 
Code 1919, § 5215. 

Necessity. — A married woman can 
not divest herself of legal or equitable 
title to land, otherwise than by a deed 
or contract acknowledged in the man- 
ner (prescribed by the statute. Pickens 
V. Stout, -67 W. Va. 422, 68 S. E. 354; 
Slaven v. Riley, 73 W. Va. 76, 7& S. E. 
1024; Weekly v. Wagner, 76 W. Va. 
236, 185 S. E. 248. See also, Shumate v, 
Shuniate, 78 W. Va. 576, 90 S. E. 834; 
Simpson r. Belcher, 61 W. Va. 157, 56 
S. E. 211; Titchenell v, Titchenell, 74 
W. Va. 237, 71 S. E. 978. 

A contract in writing, by husband 
and wife, for the sale of two lots 
owned in fee by them separately, for a 
gross consideration, though not en- 
forceable against her for want of ac- 



Acknowledgments 



51 



knowledgment, is enforceable against 
him, upon ipayment of such propor- 
tionate part of the consideration as his 
lot bears to the combined area, if 
thus equitably ascertainable, but, if not, 
then by such other method as may 
seem just and equitable. Milam v, 
Williams, 73 W. Va. 467, «0 S. E. 770. 

Where the husband joins his wife in 
a deed conveying, in fee, her undivided 
interest in a tract of land, the deed is 
void as to the wife if defectively ac- 
knowledged. Custer V, Hall, 71 W. 
Va. 119, 76 S. E. 183. 

Effect of Subsequent Acknowledge 
ment — Where a married woman by a 
written option executed only by her 
signature and seal, agrees to convey 
her land to another in case he elects 
to take the same within a stipulated 
time, her acknowledgment of the same 
made before a notary after the time 
fixed for such election has expired, 
will not, without more, revive and 
legalire the agreement and an election 
made trader it within the time. Weekly 
V. Wagner, 76 W. iVa. 236, -SS S. E. 
248. 

Proof of execution of a deed to her 
separate real estate, by a married wo- 
man, made by two witnesses before 
the clerk of a county court, as pro- 
vided in § 2 of ch. 73 of the Code is 
not the equivalent of such acknowledg- 
ment and can not be substituted there- 
for. Simpson v. Belcher, 61 W. Va. 
157, 56 S. E. 211. 

A substantial compliance with the 
statute as to taking and certifying a 
married woman's acknowledgment to 
a deed, under the former statute on 
the subject, was all that was required. 
A literal compliance was not necessary. 
Saffell V. Orr, 109 Va. 7-68, 64 S. E. 
1W7; Geil v. Geil, 101 Va. 773, 45 S. 
E. 325. 

B. PRIVY EXAMINATION. 

See .post, "Certificate,^' VII, C. 
Abolition of Privy Examination. — 
The privy examination of a married 



woman was abolished in 1891. Shu- 
mate V. Shumate, 78 W. Va. 576, 581, 
90 S. E. 824. 

A oertificat^e, made in 186S, of ac- 
knowledgment by a married woman of 
a deed failing to state that on privy 
examination she acknowledged the 
deed renders the deed void as to her. 
Nuttall V. McVey, 63 W. Va. 580, 60 
S. E. 251. 

€. CERTIFICATE. 

See post, "The Certificate," VIII. 

Certiiicate of Privy Examination. — 
Abbreviation of the word "wife" thus^ 
"wi" in a certificate of the privy ex- 
amination of a married woman, re- 
specting her execution of a deed, and 
her acknowledgment thereof, did not 
invalidate the certificate. A substantial 
compliance with the statute was all 
that was required. Hill v. Horse 
Creek Coal Land Co., 70 W. Va. 221, 
224, 73 S. E. 718. 

A certificate made in 1868, of ac- 
knowledgment by a married woman of 
a deed, failing to state that on privy 
examination she acknowledged the 
deed, rendered the deed void as to her. 
Nuttall V. McVey, 63 W. Va. 380, 60 
S. E. 251. 

VIII. THE CERTIFICATE. 

See ante, "Certificate," VII, C. 

^A. NECESSITY. 

Marriage of Minor. — Va. Code 1919, 
§ 5078; Barnes Code, ch. § 2. 

Power of Attorney for Married Wo- 
man.— Va. Code 1919, § 5215; Barnes 
Code, ch. 66, § 3. 

To be recordable, a deed of trust or 
other similar writing must have an 
endorsement or certificate of acknowl- 
edgment thereof, before an officer au- 
thorized to take the same, written 
upon it or annexed to it. Ihrig v, 
Ihrig, 78 W. Va. 360, -88 S. E. 1010. 

A. SUFFICIENCY IN GENERAL. 

See post, BAIL AND RECOGNI- 
ZANCE. 

Form of.— Va. Code 1919, §§ 5205, 



52 



Acknowledgments 



5207, 5210; Barnes Code, ch. 73, § 66. 

Same — Corporations. — Va. Code 
1919, §§ 5207, 5208; Barnes Code, ch. 
73, § 5. 

Same — Representatives. — Va. Code 
1919, § 5207. 

Married Women. — Barnes Code, ch. 
73, § 4, 6, amended by W. Va. Acts 
1919, p. 261. 

Same — Commissioners Appointed 
without the State.— Va. Code 1919, § 
2853. 

Recitals by Notary — Change of 
Name by Female Notary. — Va. Code 
1919, § 5210. 

A!;8ignment of Judgment or Vend<»^8 
Liens, etc.— W. Va. Acts 1921, p. 174, 
adding § 11 to Barnes Code, ch. 74. 

''Substantial compliance with the 
statute form is all that is required; in- 
deed the Code says that the certificate 
shall be 'to the following effect,* then 
giving the form. J^ow, the certificate, 
whatever its form or words, must have 
the same legal effect as the form 
gives." Duffy v. Currence, 66 W. Va. 
252, 258, 66 S. E. 755; Oarksburg Cas- 
ket Co. V. Valleu Undertaking Co., 81 
W. Va. 212, 214, 94 S. E. '549. See 
ante, "In General," VII. A. 

Policy of Law to Uphold.— It is the 
admitted policy of the law to uphold 
certificates of acknowledgment when 
substance is found, and not to suffer 
the proofs of instruments to be de- 
feated by technical and unsubstantial 
objections. A literal compliance with 
the statutory forms of acknowledg- 
ment to conveyances is not exacted. 
A fair compliance is sufficient. Blake 
V. Hollandsworth. 71 W. Va. 387, 390, 

76 S. E. eu. 

Must Show Title and Character of 
Officer. — "A certificate of acknowledg- 
ment, of itself, or aided by the instru- 
ment acknowledged, must show the 
title and character of the officer taking 
the acknowledgment, but this may be 
shown by the initials of the officer as 
well as if his title were fully written 



out." Worley v. Adams, 111 Va. 796, 
802, 69 S. E. 929. 

Signature and Suffix Controls.— -"Al- 
though a certificate to an instrument 
states the title of an officer not au- 
thorized to take an acknowledgment, 
if the signature thereto, together with 
its suffix, alone shows an officer hav- 
ing such authority, the signature and 
its suffix will control." Worley v. 
Adams. Ill Va. 796, 803, 69 S. E. 929. 

Designation of Authority of Officer. 
— An acknowledgment headed, "Brax- 
ton County Court Clerk's Office, De- 
cember 4th 1848," and signed "John 
P. Byrne, C B. C," sufficiently desig- 
nates the official character of the of- 
ficer certifying it and stands for the 
words Clerk of Braxton County. Goad 
V. Walker, 73 W. Va. 431, 80 S. E. 
873. 

A deed has two certificates of ac- 
knowledgment, immediately following 
one another, both dated the same day, 
one as to the husband the other as to 
the wife, the one as to the wife in full 
compliance with the statute and show- 
ing the official character of the officers 
making it, the one as to the husband 
though purporting to be made by per- 
sons of the exact names of those mak- 
ing the other certificate yet deficient 
in not describing them as officers au- 
thorized in the premises; held: The 
two certificates may be read together 
as one, or the certificate of the wife's 
acknowledgment may be resorted to 
for aid in supplying the omission of 
official character in the other. Blake 
V, Hollandsworth. 71 W. Va. 387, 76 
S. E. 814. 

Certified by Unauthorized Officer. — 
An acknowledgment to a trust deed, 
certified by an officer having no legal 
authority therefor, is void and ineffectual 
for any purpose. Zolsman v. Totz. 74 
W. Va. 604, 82 S. E. 511. 

Necessity of Signature by Officer.— 
"To be valid, a certificate of acknowl- 
edgment must be signed by the offi- 
cer making it. The statute requires 



ACKNOWLilDGMENTS 



S3 



it to be under his hand. To comply 
with this requirement, it must be 
signed. 1 Cyc. 577." Ihrig v, Ihrig, 
78 W. Va. 360, 362, 88 S. E. 1010. 

A deed containing a certificate of 
acknowledgment unsigned by the no. 
tary, by whom the acknowledgment 
purports to have been taken, and not 
otherwise proven, is not a recordable 
paper. South Penn. Oil Co. v. Blue 
Creek Develop. Co., 77 'W. Va. 682, 88 
S. E. 1029. 

Acknowledgment before Justice Who 
Also Signs as Alderman. — The fact 
that a justice taking an acknowledg- 
ment signs the certificate as justice and 
alderman will not vitiate such certifi- 
cate, but his official designation as 
alderman will be regarded as sur- 
plusage. Wilson V. Braden, 56 W. Va. 
372, 49 S. E. 409. 

Knowledge of Officer as to Identity 
of Acknowledger. — An acknowledg- 
ment, certified in 1855, as well as at 
the present time, should in some man- 
ner identify the person acknowledging 
as the person who signed the writing. 
Goad V. Walker, 73 W. Va. 431, SO S. 
E. 873. 

"The statute intends that the officer 
shall certify that the woman acknowl- 
edging is the same who signed the 
deed. It intends that the officer from 
his own knowledge of the person, or by 
prudent inquiry, shall ascertain and 
find and certify that identity of per- 
son. Otherwise false certificates may 
be obtained." Duffy v, Currence, 66 
W. Va. 252, 257, 66 S. E. 755. 

The omission from a certificate of 
acknowledgment of a deed of the 
words, after the name of a grantor, 
"whose name is signed to the writing 
above" makes the acknowledgment 
bad, there being no other words in the 
certificate to the same^ effect. DuflFy v. 
Currence, 66 W. Va. 252, 66 S, E. 755; 
Goad V. Walker, 73 W. Va. 431, 436, 
^0 S. E. 873, wherein the court said: 
"The certificate should show that the 
officer making it knew the person ac- 



knowledging the writing to be the 
same person who signed it. The 
words quoted from the statute were 
intended to perform that office. Code 
1849, ch. 121, § 3; Code (W. Va.) 
1906, ch. 73, § 3." 

For examples of certificates suf- 
ficient in this respect. See Sullivan v. 
Gum, 106 Va. 245, 55 S. E. 1535; Goad 
V. Walker, 73 W. Va. 431, 439, 80 S. 
E. 873. 

Marital Relation. — So much of the 
form of the certificate of acknowledg- 
ment, set out in Sec. 4, ch. 73 (Barnes 
Code, ch. 73, § 4), Code, to be made by 
a husband and wife to their joint deed, 
as provides for certification of the 
marital relation, is merely directory; 
and a deed for the wife's land, made 
and acknowledged by both husband 
and wife, is not void because marital 
relation does not appear on the face 
of the deed or in the certificate of ac- 
knowledgment. The relationship may 
be proven by evidence dehors the writ- 
ing. Wehrle v. Price, 80 W. Va. 666, 
94 S. E. 477. 

Designation of Authority to Make 
Acknowledgment. — A certificate of ac- 
knowledgment of a deed of trust by a 
corporation, which omits from the af- 
fidavit constituting a part of it, the 
clause, "And that said writing was 
signed and sealed by him in behalf of 
said corporation," is fatally defectivfe» 
and the instrument to which it is ap- 
pended is not legally recordable. 
Clarksburg Casket Co. v. Vallen Un- 
dertaking Co., 81 W. Va. 212, 94 S. E. 
549. 

"The clause omitted is obviously a 
substantial one and lack thereof is not 
supplied by any equivalent words. The 
executing officer is required to swear, 
'That said writing was signed and 
sealed by him in behalf of said cor- 
poration.' It is not enough that he has 
authority generally to execute deeds and 
other instruments for and on behalf of 
the r:orporation. He must swear that 
he had authority to execute the par- 



54 



ACKNOWI^KDGMENTS 



ticular instrument he acknowledges.'* 
Clarksburg Casket Co. v, Valleu Un- 
dertaking Co., SI W. Va. 212, 215, W 
S. E. M9. 

B. PRESUMPTION OF REGU- 
LARITY. 

It is not necessary that the certifi- 
cate should state in express terms that 
the acknowledgment was taken before 
the officer in his city. It will not be 
presumed that the officer did an illegal 
act. Sullivan v. Gum, 106 Va. 245, 55 
S. E. 535; Worley v. Adams, 111 Va. 
796, 803, 69 S. E. 929, citing Bensimer 
V. Fell, 35 W. Va. 15, 12 S. E. 1078, 

C. EQUIVALENT EXPRESSIONS. 

See ante, "Sufficiency in General," 
VIII, A. 

A certificate of acknowledgment of 
a deed taken by a notary public which 
is full, accurate and complete in every 
respect except that the official char- 
acter of the officer taking it is not 
specifically stated in the body of the 
acknowledgment, but which is signed 
by him with the letters N. P. after 
his name, is a sufficient certificate. 
The letters N. P. read in connection 
with what is certified stand for and 
are the equivalent of notary public. 
Worley v. Adams, ill Va. 796, 69 S. 
E. 929. 

E. CERTIFICATE AS EVIDENCE. 

Evidence to Impeach. — The certifi- 
cate of the acknowledgment of a deed 
imports verity, and can not be over- 
come, except by the clear and satisfac- 
tory proof. Swiger v, Swiger, 58 W. 
Va. 119, 52 S. E. 23. 

The evidence of the grantor denying 
the execution of the deed and the 
opinion of experts that the signature 
thereto is not that of the grantor, are 
not sufficient to overcome the certificate 
of acknowledgment. Swiger v, Swiger, 
58 W. Va. 119, 52 S. E. 23. 



Denial of the execution of a deed 
and acknowledgment thereof, unaided 
otherwise than by the facts that the 
signature is by mark and the party 
could write and denies having ever 
signed any papers by mark, is not suf* 
ficient to overcome a certificate of ac- 
knowledgment, nearly thirty years old 
and pronounced genuine by the officer 
who certified the acknowledgment. Hill 
V. Horse Creek Coal Land Co., 70 W. 
Va. 221, 224, 73 S. E. 718. 

Same— Officer Can Not Contradict 
His Own Certificate. — The evidence of 
a justice of the peace, who takes and 
certifies an acknowledgment to a deed, 
is incompetent so far as it tends to 
impeach his official act. Wooldridge 
V. Wooldridge, «9 W. Va. 554, 72 S. 
E. 654. 

Wife's peedr-Redtals of Acknowl- 
edgments — ^Burden of Proof. — ^Upon a 
bill by a husband, after the death of 
his wife, to set aside a deed executed 
and acknowledged by her in due form, 
but not joined in by him and alleged 
not to have been lawfully executed by 
her, while living separate and apart 
from him, but a copy of which is 
exhibited with the bill, the certificate 
of acknowledgment thereto, by section 
6, chapter 73, Code 1913, constitutes 
prima facie evidence of the facts re- 
cited therein, and a general replication 
of plaintiff to defendants' answer deny- 
ing all the material allegations of 
such bill, and denying the invalidity 
of said deed, does not put defend- 
ants' upon proof of the facts 
recited in such certificate. Spangler v. 
Vermillion, 80 W. Va. 75, 92 S. E. 449. 

XII. FEES. 

Notaries.— Va. Code 1919, § 3480 (3) ; 
Same's Code, ch. 137, § 4. 
Justice of the Peace. — Va. Code 

1919, § 3481, amended by Va. Acts 

1920, p. 804, but not as to this pro- 
vision. 



ACQUIESCENCE.—See post, ESTOPPEL; LACHES. 

ACQUITTED.— See ante, AUTREFOIS, ACQUIT AND CONVICT. 

In an action for malicious prosecution "Saying that the plaintiff was discharged 
is not sufficient; it is not equal to the word acquitted, which has a definite mean- 
ing. Where the word acquitted is used it must be understood in the legal sense, 
namely, by a jury on the trial. But there are various ways by which a man may 
be discharged from his imprisonment, without putting an end to the suit. If, 
indeed, it had been alleged that he was discharged by the grand jury's not find- 
ing the bill, that would have shown a legal end to the prosecution." Graves 
V. Scott, 104 Va. 372, 375, 376, 51 S. E. 821, quoting Justice Duller in Morgan v. 
Hughes, Durnf. & East's Rep., vol. 2, p. 225. 

ACTIONABLE NEGLIGENCE.— See post, NEGLIGENCE. 

ACTIONABLE WORDS.— See post, LIBEL AND SLANDER. 

ACTION ON THE CASE.— See post, TRESPASS. 



ACTIONS. 

I. Definitions and General Consideration, 56. 

A. Definitions, 56. 

A>4. Continuance of Actions under Virginia Constitution, 56. 

B^. Accrual of Actions, 56. 

C. Statutory Remedies, 56. 

1. In General, 56. 

2. Cumulative and Exclusive Remedies, 57. 

E. Actions Ex Delicto and Ex Contractu, 57. 

1. Instances, 57. 

2. Waiver of Tort, 57. 

3. Waiver of Contract, 57. 

F. Cause of Action Must Exist When Suit Brought, 57. 

G. Moot Questions or Abstract Propositions, 57. 
H. No Right without a Remedy, 57. 

K. Worthless Judgment as a Defense, 5d. 

n. Demand and Notice or Condition Precedent, 58. 
m. Oonunencement of Suit or Action, 58. 
IV. Splitting Causes of Action, 58. 

V. Joinder of Causes of Action, 58. 

A. At Law, 5fi. 

1. General Test, 58. 

2. Distinct and Inconsistent Causes of Action, 58. 

3. Tort and Contract, 58. 
85^. Deljt and Detinue, 59. 

13 J/^. Torts Arising Out of Single Transaction, 59. 
15. How Objection for Misjoinder Raised, 59. 

VI. Equitable Defenses, 5^- 

55 



56 Actions 

CROSS REFERENCES. 

See the title ACTIONS, vol. 1, p. 122, and references there given. In ad- 
dition see ante. ABATEMENT, REVIVAL AND SURVIVAL; AC- 
COUNTS AND ACCOUNTING; post, AMENDMENTS; ARBITRATION 
AND AWARD; ASSAULT AND BATTERY; ASSUMPSIT; ATTACH- 
MENT AND GARNISHMENT; BONDS; BOUNDARIES; CARRIERS 
COMMON LAW; CONSOLIDATION OF ACTIONS; CORPORATIONS 
COSTS ; COUNTIES; COURTS; CREDITORS' SUITS; DAMAGES 
DEAD BODIES; DEBT. ACTION OF; DEMURRERS; DETINUE; DIS- 
MISSAL, DISCONTINUANCE AND NONSUIT; EJECTMENT; ELEC- 
TION OF REMEDIES; EMINENT DOMAIN; EXECUTORS AND AD- 
MINISTRATORS; FALSE IMPRISONMENT; FORCIBLE ENTRY AND 
DETAINER; HUSBAND AND WIFE; INJUNCTIONS; INSANITY; IN- 
TERPLEADER; JURISDICTION; LIMITATIONS OF ACTIONS; LIS 
PENDENS; MALICIOUS PROSECUTION; MASTER AND SERVANT; 
MERGER; MORTGAGES AND DEEDS OF TRUST; MULTIPLICITY 
OF SUITS; NUISANCES; PARTIES; PARTITION; SET-OFF, RECOUP- 
MENT AND COUNTERCLAIM; STATE; STIPULATIONS; STOCK AND 
STOCKHOLDERS; SUPERSEDEAS AND STAY OF PROCEEDINGS; 
TRESPASS; TROVER AND CONVERSION; VENUE. As to moot ques- 
tion on appeal, see post, APPEAL AND ERROR. As to right of action of 
assignee, see post, ASSIGNMENTS. As to actions for injuries, see specific 
titles, DEATH BY WRONGFUL ACT, LIBEL AND SLANDER, SEDUC- 
TION, etc. As to abandonment by failure to prosecute, and reinstatement, see 
post, DISMISSAL, DISCONTINUANCE AND NON-SUIT. As to dis- 
claimer, see post, EJECTMENT. As to action by insane persons, see post, 
INSANITY. As to effect of judgment against one of several defendants, see 
post, JUDGMENTS AND DECREES. As to form, commencement, joinder 
and splitting of causes of action in justice courts, see post, JUSTICES OF 
THE PEACE. As to abuse of process, see post, MALICIOUS PROSECU- 
TION. As to action by notice and motion, see post, MOTIONS. As to ac- 
tions to remove officers, sde post, PUBLIC OFFICERS. As to transfer of 
cases from one side of the court to the other, see post, REMOVAL OF 
CAUSES. As to actions against state, see post, STATE. As to statutory 
abolition of certain real actions, see post, WRIT OF RIGHT. 



I. DEFINITIONS AND GENERAL 
CONSIDERATION. 

A. DEFINITIONS. 

A cause of action may ordinarily be 
said to consist of an obligation upon 
the part of one to another, and the 
breach or failure to perform that ob- 
ligation in accordance with its terms. I 
Jones V. Main Island Creek Coal Co., I C. STATUTORY REMEDIES. 



B^. ACCRUAL OF ACTIONS. 

For a breach of any contract, the 
law gives an immediate right of ac- 
tion unless, by the terms of the con- 
tract, such right is postponed. Belle- 
Meade Lumber Co. v. Turnbull, 77 W. 
Va. 349, 3^4, 87 S. E. 382. See post, 
INDEMNITY. 



84 W. Va. 245, 248, 99 S. E. 462. 

A^. CONTINUANCE OF AC- 
TIONS UNDER VIRGINIA 
CONSTITUTION. 
Constitution of Virginia, schedule, 
§3. 



1. In GeneraL 

Repeal of Statute Giving Right of 
Action. — A right of action that did not 
exist at common law, but depends 
solely upon statute, falls with the re- 
peal of the statute, without a saving 



Actions 



57 



clause, unless reduced to judgment. 
If pending such action, before judg- 
ment, the law which gave the right to 
sue is repealed, without a saving clause 
as to pending suits, no further steps to- 
wards judgment can be taken in such 
, suits Brown v. Western State Hospi- 
tal, 110 Va. 321, 66 S. E. 48. 

2. Cumulative and Exclusive Remedies. 

A statute prescribing a new remedy 
for an existing right should never be 
construed to abolish a pre-existing 
remedy, in the absence of express 
words or necessary implications. Levy 
V. Davis, 115 Va. 814, 80 S. E. 791. 

E. ACTIONS EX DELICTO AND 
EX CONTRACTU. 

1. Instances. 

Actions ex contractu, are founded on 
a breach of contract express or im- 
plied, and are intended to redress the 
injury thence arising. Actions ex de- 
licto are founded on, and designed to 
obtain redress for, torts; that is, for 
civil wrongs which do not proceed 
from the breach of any contract, ex- 
press or implied. Myers v. McCor- 
mick, 109 Va. 160, 163, 63 S. E. 427. 

A declaration resting a right of re- 
covery on the ground that plaintiff has 
been damaged by a breach of con- 
tract states a cause of action in con- 
tract, and not in tort, though it al- 
leges deceit on part of defendant in 
procuring the contract. Jewett t\ 
Ware, 107 Va. 802, 60 S. E. 131. 

The averment in a declaration 
against a common carrier, that the de- 
fendant, im consideration of the de- 
livery to it of certain goods, issued its 
bill of lading, by which it "under- 
took, promised, and agreed" to carry 
the goods to their destination, is not 
such an averment of consideration as 
is necessary in assumpsit and ren- 
ders the count one in tort and not in 
assumpsit. Pennsylvania R. Co. v. 
Smith, 106 Va. 645, 56 S. E. 567. 



a. Waiver of Twt. 

See post, ASSUMPSIT. 

8. Waiver of Contract. 

Tort of Contract.— There is no 
question of a plaintiiT's right t9 waive 
a contract and sue in tort for damages 
for breach of contract. Hunter v. 
Burroughs, 123 Va. 113, 96 S. E. 360. 

F. CAUSE OF ACTION MUST EX- 

IST WHEN SUIT BROUGHT. 

Where there is no right of recovery 
nor of action at the time an action is 
commenced, the proceeding is fatally 
and incurably defective. Subsequent 
acquisition of the right to sue con- 
fers no right of recovery in an action 
prematurely instituted. Boggess z/. 
Bartlett, 72 W. Va. 377, 78 S. E. 241, 
citing Wildasin v. Long, 74 W, Va. 
583, 82 S. E. 205. See Keister v. 
Keister, 123 Va. 157, 96 S. E. 315. 

G. MOOT QUESTIONS OR AB- 
STRACT PROPOSITIONS. 

Moot Questions or Abstract Proposi. 
tions. — 'Consent does not confer juris- 
diction in a given case, and courts will 
not decide purely moot questions. 
Whenever there is no actual con- 
troversy involving real and substan- 
tial rights between the parties to the 
record, the case will be dismissed. 
Thomas, etc., Co. v. Norton, 110 Va. 
147, 65 S. E. 466. 

H. NO RIGHT WITHOUT A 
REMEDY. 

A civil action is maintainable when, 
and only when, the person complaining 
is of a class entitled to take advantage 
of the law, is a sufferer from the dis- 
obedience, is not himself a partaker in 
the wrong of which he complains, or 
is not otherwise precluded by the 
principles of the common law from his 
proper standing in court. Norman v, 
Virginia-Pocahontas Coal Co.. 68 W. 
Va. 405, 407, 69 S. E. 857. See Shoffner 



58 



Actions 



V. Sutherland, 111 Va. 29«, &8 S. E. 
996. 

K. WORTHLESS JUDGMENT' AS 
A DEFENSE. 
The fact that a prospective judg- 
ment against a defendant in an action 
at law will be worthless is no defense 
to the action. Fleming v. Fairmont, 
etc.. R. Co., 72 W. Va. 8a5, 841, 79 S. 
E. 826. 

II. DEMAND AND NOTICE OR 
CONDITION PRECEDENT. 

See post, SALES. 

When no act on the part of the 
plaintiff is required by the term of the 
contract, to enable the defendant to 
pay over money, a special notice, de- 
mand or request is not a condition 
precedent to right of action. Butts v. 
Butts, 81 W. Va. 55, 67, 94 S. E. 3«0. 

IIL COMMENCEMENT OF SUIT 
OR ACTION. 

It is well settled in West Virginia 
that the date of the original summons 
is the date of the commencement of a 
suit or action. Oil, etc., Supply Co. v. 
Gartlan, 58 W. Va. 267, 62 S. E. 624. 
See also, Geiser Mfg. Co. v. Chewning 
53 W. Va. 623, 44 S. E. 193. 

A suit in equity is commenced at 
the time process to answer the plain- 
tiff's bill is issued although the bill be 
not then filed. The bill, when filed, 
relates back to the time the process 
was issued. Columbia Finance, etc., 
Co. V. Fierbaugh, 59 W. Va. 334, 53 
S. E. 468. 

IV. SPLITTING CAUSES OF AC- 

TION. 

As to splitting action for damages in 
condemnation proceedings, see post, 
EMINENT DOMAIN. 

V. JOINDER OF CAUSES OF AC- 

TION. 

A. AT LAW. 
1. General Test. 

Wherever the causes of action are 
of the same nature and the same judg- 



ment is to be given in all, they may 
be joined in one declaration. Stand- 
ard Paint Co. v. Victor & Co., 120 Va. 
595, 91 S. E. 752; Bowman v. First 
Nat. Bank, 115 Va. 463, 80 S. E. 95; 
Coal Land Develop. Co. v. Chidcster, 
86 W. Va. |561, 103 S. E. 923. 

Even where the torts are distinct 
and independent, if they are of the 
same nature and if the«same judgment 
may be given in each, they may, as a 
general rule, be joined. Standard Paint 
Co. V, Victor & Co., 120 Va. 595, 91 
S. E. 752, citing Fisher v. Seaboard, 
etc., R. Co., 102 Va. 363, 46 S. E. 381, 
1 Ann. Cas. 622. See Schaffner v. 
National Supply Co., 80 W. Va. Ill, 
92 S. E. 680. 

Under the pleadings of the declara- 
tion it was held that a court did not 
cover two separate and distinct 
causes of action. Catlett v. Bloyd, 83 
W. Va. 776, 99 S. E. 81. See Oren- 
stein-Arthur Koppel Co. v, Martin, 77 
W. Va. 793, 88 S. E. 1064. 

In determining whether there is a 
misjoinder of counts in a declaration 
in trespass on the case, one of which 
contains averments usual in an action 
of assumpsit for breach of contract, 
the court will look to the form of the 
action and reconcile the count with the 
form adopted if it can do so without 
violating some well recognized rule of 
pleading. Chambers r. Spruce Light- 
ing Co., 81 W. Va. 714, 95 S. E. 192. 

9. Distinct and Inconsistent Causes of 
Action. 

A declaration against a husband and 
wife, charging the utterance of slan- 
der by the husband on one occasion 
and by the wife on another, pursuaint 
to a conspiracy previously formed, to 
injure the plaintiff in respect to charac- 
ter, is demurrable for misjoinder of 
actions. Kellar v, James, -63 W. Va. 
139, 59 S. E. 939. 

8. Tort and Contract. 

It is a well settled elementary prin- 



Actions 



59 



ciple of law that counts for tort can 
not be joined with counts upon con- 
tract. Wells v, Kanawha, etc., R. 
Co., 78 W. Va. 762, 763, 90 S. E. 337; 
Shafcr v. Security Trust Co., -82 W. 
Va. €18, 97 S. E. 290. 

A declaration in case against a car- 
rier for wrongful ejection of a <pas- 
senger is not subject to demurrer, on 
the ground of misjoinder of severable 
causes in one count, where the con- 
tract of carnage is alleged as an in- 
ducement to the real cause averred. 
Phillips V. Ohio Valley Elect. Co., 78 
W. Va. 776, 90 S. E. 342. 

S^. Pd»t and Detinue. 

It is said to be one of the anomalies 
of our sys'tem of pleading that debt 
and detinue may be joined in the same 
action (4 Minor's Inst. 447-8), but it 
has never been held that a plaintilf 
can sue in detinue and recover in debt. 
Virginia Land, etc., (Bureau r. Pcrrow, 
119 Va. 831, «36, 89 S. E. '891. 

W2. Torts Arising out of Single 
Transaction. 
Counts for malicious prosecution and 
ialse imprisonment may be joined in 
a declaration in trespass on the case. 
Galizian v, iHenry, 71 W. Va. 892, 76 
S. E. 440. ' , > 



False Warranty and Deceit—If the 
declaration be in a tort upon the false' 
warranty, counts for deceit may be 
added, and a recovery may be had for 
the false warranty or for the deceit, 
according to the proof. SchaflFner v. 
National Supply Co., 80 W. Va. Ill, 
92 S. E. 580. 

Claims ifor permanent and temporary 
damages to real estate, growing out of 
the same act, may be united in one 
action. Lyons v. Fairmont 'Real Es- 
tate Co., 71 W. Va. 754, 77 S. E. 525. 
See Clifford v. Martinsburg, 78 W. Va. 
287, 88 S. E. 845. 



U. How 
Raised. 



for Misjoinder 



A misjoinder of causes of action in 
a declaration is fatal on demurrer, dis- 
missing the action, unless the plaintiff, 
as he may, amends so as to eliminate 
one or the other of the causes of ac- 
tion therein set forth. Shafer v. 
Security Trust Co., 82 W. Va. 618, 97 
S. E. 290. 

VI. EQUITABLE DEFENSES. 

See post, SET-OFF, RECOUP- 
MENT AND COUNTERCLAIM. See 
also ante, "Worthless Judgment as a 
Defense," I, K. 



ACTIO PERSONALIS MORITUR CUM PERSONA.— "Actio personalis 
moritor cum persona, a personal action dies with the person." Pennington v. 
Gillaspie, 63 W. Va. 541, 553, 51 S. E. 413. See ante, ABATEMENT, RE- 
VIVAL AND SURVIVAL, p. 1. 

ACT OF GOD.— See post, CARRIERS; CONTRACTS; DEATH BY 
WRONGFUL ACT; FLOODS; MASTER AND SERVANT; NEGLI- 
GENCE; WATERS AND WATERCOURSES. 

The term act of God, in its legal sense, applies only to events in nature so 
extraordinary that the history of climatic variations and other conditions in the 
particular locality affords no reasonable warning of them. Director-General v, 
Bryant, 127 Va. 651, 105 S. E. 389. 

Inevitable Accident — As to injury to boat as result of inevitable accident. See 
Kcnova Transportation Co. f . Monongahela River Consol. Coal, etc., Co., 56 W. 
Va. 70, 48 S. E. 844. See also, post, SHIPS AND SHIPPING. 



ACTUAL.— As to actual possession, see ante, ADVERSE POSSESSION. 
"As to actual damages, see post, DAMAGES. As to actual value, see post, 
MARKET VALUE; VALUE. As to actual notice, see post, NOTICE. 

Actual Fraud. — See Marshall v. Locomotive Engineers Mut. Life, etc., Ass'n, 
79 W. Va. 121. 128. 90 S. E. 847. See also post, BENEFICIAL AND BENEV- 
OLENT ASSOCIATIONS; FRAUD AND DECEIT; INSURANCE. 

"Actual ratification of an act involves a voluntary adoption of the act. Full 
knowledge of the act assented to, and an intention to adopt the act as the 
act of the corporation, are therefore essential. A corporation can never be 
charged with an unauthorized act of its agents on the sole ground that the act 
has been ratified by the shareholders, unless the shareholders had full knowl- 
edge of the act." Third Nat. Bank v. Laboringman's Mercantile, etc., Co., 56 
W. Va. 446, 452, 49 S. E. 544. See post, CORPORATION. 

ADDITIONAL COURTS.— In the construction of § 98 of the constitution of 
Virginia authorizing the legislature to provide additional courts for certain 
cities, applying the doctrine of ejusdem generis to the exposition of the lan- 
guage, the additional courts, which the general assembly may establish, must 
be courts similar in grade, dignity and jurisdiction to existing courts, and 
that cannot be predicated of a court clothed with the special and limited ju- 
risdiction conferred on the clerks. McCurdy v. Smith, 107 Va. 757, 60 S. E. 78. 

ADDRESS. — "Webster's Dictionary defines the verb *To address' to mean 
*To direct, as words (to any one or any thing); to make, as a speech, petition 
etc. (to any one, an audience). To direct speech to; to make a communication 
to. whether spoken or written; to apply to by words, as by a speech, petition, 
etc.; to speak to; to accost. To direct in writing, as a letter; to superscribe or 
to direct and transmit; as, he addressed a letter.'" Yoder v. Commonwealth, 
107 Va. 823, 832, 57 S. E. 581. 

ADEMPTION OF LEGACIES.— See post, WILLS. 



ADEQUATE REMEDY AT LAW. 

I. Rule Stated and Applied, 6i. 

A. Statement of Rule, 61. 

B. Applications of Rule, 61. 

1. Relief Refused on Ground of Existence of Legal Remedy, 61. 

2. Relief Granted in Absence of Adequate Legal Remedy, 62. 

n. Exceptions and Modifications of Rule, 62. 

A. Remedy Must Be Full and Complete, 62. 

C. Concurrent Jurisdiction of Equity and Law, 63. 

D. Retention for Complete Relief, 63. 

CROSS REFERENCES. 

See the title ADEQUATE REMEDY AT LAW. vol. 1, p. 161, and references 
there given. In addition, see post, ADVERSE POSSESSION; AGENCY: 
APPEAL AND ERROR; CERTIORARI; DEBT, ACTION OF; DEMUR- 
RERS; DISCOVERY; EJECTMENT; EMINENT DOMAIN; EQUITY: 
FRAUD AND DECEIT; INJUNCTIONS; INTERPRETATION AND 

60 



ADEQUATE Remedy at Law 



61 



CONSTRUCTION; JOINT ADVENTURES; JOINT TENANTS AND 
TENANTS IN COMMON; JUDGMENTS AND DECREES; JURISDIC- 
TION; LANDLORD AND TENANT; LOST INSTRUMENTS; MANDA- 
MUS; NUISANCES; PARTNERSHIP; PLEADING; QUIETING TITLE; 
RESCISSION, CANCELLATION AND REFORMATION; SET-OFF, RE- 
COUPMENT AND COUNTERCLAIM; SPECIFIC PERFORMANCE; 
SUBROGATION; VENDOR AND PURCHASER. 



I. RULE STATED AND APPLIED. 

A. STATEMENT OF 'RULE. 

Equity does not have jurisdiction of 
cases in which the plaintiff has a full, 
complete, and adequate remedy at law, 
unless some (peculiar feature of jthe 
case comes within the province of a 
court of equity. Irons v. Bias, 85 W. 
Va. 493, 495, 102 S. E. 126; Bledsoe v. 
Robinett, 105 Va. 723, 54 S. E. 861; 
Tax Title Co. v. Denoon, 107 Va. 201, 
57 S. E. 586; Sweeney v. Foster, 112 
Va. 499, 71 S. E. 548; Ely v. Johnson, 
114 Va. 31, 75 S. 748; Spangler v. 
Ashwell, 114 Va. 325, 76 S. E. 281; 
Branham v. Artrip, 115 Va. 314, 79 S. 
E. 390, Martin v. Hall, 115 Va. 358. 
79 S. E. 320; Starke v. Storm, 115 Va. 
651, 79 S. E. 1057; Lanston Monotype 
Mach, Co. V. Times-Dispatch Co., 115 
Va. 797, 80 S. E. 736; Fidelity, etc., 
Co. te'. Gill, 116 Va. 86, 81 S. E. 39; 
Austin V. Sanders, 122 Va. 209, 95 S. 
E. 273; Ewing v. Dutrow, 128 Va. 416, 
104 S. E. 791; Conrad v. Buck, 21 W. 
Va. 396; Stephenson v. Burdett, 56 W. 
Va. 109, 48 S. E. 846; Bartlett v. Arm- 
strong, 56 W. Va. 293, 49 S. E. 140; 
Harvey v. Ryan, 59 W. Va. 134, 53 S. 
E. 7; Deepwater Co. v. Motter & Co., 

60 W. Va. 55, 5«, 53 S. E. 705; Orr 
V. Cox, €1 W. Va. 361, 56 S. E. 522; 
Connell v. Yost, 62 W. Va. 66, 57 S. 
E. 299; Jackson v. Big Sandy, etc., R. 
Co., 63 W. Va. 18, 59 «S. E. 749; Mc- 
Donald V. Jarvis, 64 W. Va. 62, 60 S. 
E. 990; Lewis v. Hall, 64 W. Va. 147, 

61 S. E. 317; Annon v. Brown, 65 W. 
Va. 34, 63 S. E. 691; Depue v. Miller, 
65 W. Va. 120, 64 S. E. 740; Teter v. 
Teter, 65 W. Va. 167, 63 S. E. 967; 
State V. Ehrlick, 65 W. Va. 700. 64 S. 
E. 935; Prewett v. Citizens Nat. Bank, 
^ W. Va. 184, 66 S. E. 231 ; Coal, etc.. 



R. Co. V. Conley, 67 W. Va. 129, 67 
S. E 613; Hogg V, McGuffin, 67 W. 
Va. 456, 68 S. E. 41; Maxwell v, Davis 
Trust Co., 69 W. Va. 276, 71 S. E. 270; 
Hall V. Philadelphia Co., 72 W. Va. 
573, 78 S. E. 755; Jennings v. South- 
ern Carbon Co., 73 W. Va. 215, 22.% 
80 S. E. 368; Wheeling v. Natural Gas 
Co., 74 Wl Va. 372, 375, 82 S. E. 
345; United Fuel Gas Co. v West Vir- 
ginia Paving, etc., Co., 74 W. Va. 484, 
82 S. E. 329; Morgan v. Bartlett, 75 
W. Va. 293, 83 S. E. 1001; Peterson v. 
Smi^h, 75 W. Va. 553, 84 S. E. 250; 
Horse Creek Coal Land Co. v. Trees, 
75 W. Va. 559. 84 S. E. 376; Ritter 
Lumber Co. v. Lowe, 75 W. Va. 714, 
84 S. E. 566; Big Huff Coal Co. v. 
Thomas, 76 W. Va. 161, 85 S. E. 171; 
Nuzum V. Nuzum, 77 W. Va. 202, 87 
S. E. 463: United States Fidelity, etc., 
Co. V. Home Bank, 77 W. Va. 665, 88 
S. E. 109, 110: Pardee, etc., Lumber 
Co. V. Odell, 78 W. Va. 159. 88 S. E. 
419; Carlsbad Mfg. Co. v. Kelley, 84 
W. Va. 190, 100 S. E. 65. 

B. APPLICATIONS OF RULE. 
1. Relief Refused on Ground of Exist- 
ence of Legal Remedy. 

Agency.^ — Where the whole contro- 
versy sought to be litigated in a suit 
in chancery turns upon whether or not 
one person was the agent of another, 
the remedy at law is full, adequate 
and complete, whether the principal is 
sought to be charged in consequence of 
an actual or implied agency, or by the 
adoption of the acts of the agent, and 
a court of equity is without jurisdic- 
tion. Spangler v. Ashwell, 114 Va. 
325, 76 S. E. 281. 

Demand Purely Legal. — A bill in 
equity is bad on demurrer for want of 
ecjuity when it appears that the plain- 



62 



Adequate Remedy at Law 



tif¥ has a purely legal claim for which 
there is an adequate remedy at law. 
Fidelity, etc., Co. v. Gill, 116 Va. 86, 
81 S. E. 39. 

CreditorB' 'Bill by General Creditor. 
— A bill by a general creditor against 
the administrator of a decedent's es- 
tate, alleging as the only grounds for 
equitable relief that decedent died 
leaving considerable personal estate, 
more than sufficient to pay plaintiffs 
debt, that the defendant, the sole heir, 
has appropriated all the estate of de- 
cedent to his own use ; that he has sold 
and conveyed a part of the real estate 
of which the decedent died seized and 
possessed, and which prays simply, 
that ptovision be made for payment of 
plaintifTs debt out of said estate, for 
reference to a commissioner, for a 
convention of creditors, and for gen- 
eral relief, is bad on demurrer, as 
showing no sufficient grounds for eq- 
uity jurisdiction. Shepherd v. Craig, 
70 W. Va. 218, 73 S. IE. 712. See, gen- 
erally post, CREDITORS' SUITS. 

8. Relief Granted in Absence of Ade- 
quate liegal Remedy. 

Where a 'dissenting stockholder filed 
a bill in equity to ascertain the value 
of his stock in a corporation which had 
consolidated with another without his 
consent and an investigation into the 
condition of the corporation might 
be made and accounts taken which 
can be much better done in a court of 
equity than in a court of law, it was 
held, that, "the demurrer to the bill, 
on the ground that the appellant had 
a complete and adequate remedy at 
law, was therefore properly overruled. 
Hickman v. Stout, 2 Leigh (29 Va.) 6; 
Tyler v. Nelson. 14 Gratt. (55 Va.). 
214; Coffman v, Sangston, 21 Gratt. 
(62 Va.), 263; National Life Ass*n v. 
Hopkins, 97 Va. 167, 33 S. E. 539." 
Winfree. v. Riversride Cotton Mills, 113 
Va. 717, 724, 75 S. E. 309. 

Remedy at Law Inadequate under 
CircumBtances. — Where the owner of 
land agreed to convey part of it to 



the plaintiff but subsequently without 
fulfilling his agreement conveyed the 
land to the defendant subject to his 
agreement with plaintiff, it was held 
that a bill by the plaintiff, who was 
in possession of said part of land, 
against the defendant and the former 
owner to get in the legal title to his 
part of the land and also to enjoin the 
defendant from prosecuting against him 
an action of ejectment and to enjoin 
the defendant from numerous and con- 
tinuous trespasses was good on de- 
murrer because of the inadequacy of 
the plaintifFs remedy at law. Bent v. 
Barnes, 72 W. Va. 161, 78 S. E. 374, 
citing Miller v. Wills, 95 Va. 337, 28 
S. E. 337; Callaway r. Webster, 98 
Va. 790, 37 S. E. 276. 

II. EXCEPTIONS AND MODIFI- 
CATIONS OF IRULE. 

A. REMEDY MUST BE FULL AND 
COMPLETE. 

In order to justify the court in refus- 
ing to take such jurisdiction, the rem- 
edy at law "must be adequate; for, if 
at law, it falls short of what the party 
is entitled to, that founds a jurisdiction 
in equity. And it must be complete; 
that is, it must attain the full end and 
justice of the case. It must reach the 
whole mischief and secure the whole 
right of the party in a perfect manner 
at the present time and in future; 
otherwise, equity will interfere and 
give such relief and aid as the exisen- 
ciies o£ the ,par|icu]ar case may jfci- 
quire." 1 Story's Eq. Jur.. § 33; Stuart 
r. Pennis, 91 Va. 688, 22 S. E. 509; 
Southern R. Co. "v. Franklin, etc., R. 
Co., 96 Va. 693, 32 .S. E. 48«, 44 L. R. 
A. 297; Virginia Iron, etc., Co. v. 
Graham, 124 Va. 692, 709, 98 S. E. 659; 
Martin v. Hall, 115 Va. 358, 79 S. E. 
320; Carney v. Barnes, 56 W. Va. 581, 
49 S. lEt 423 ; Crawford v. Turner, 68 S. 
E. 600, 52 S.E. 716; Eastern Oil Co. v. 
Coulehan, 65 W. Va. ^1, 64 S. E. 836; 
Buskirk v. Sanders, 70 W. Va. 363, 368, 73 
S. E. 937; Jennings v. Southern Carbon 



Adjoining Landowners 



63 



Co., 73 W. Va. 215, ^23, 80 S. E. 368; 
Wheeling v. Natural Gas Co., 74 W. 
Va. 373, 82 S. E. 345; Warren v. 
Boggs, 83 W. Va. 89, 97 S. E. 589; 
Sayre v, Kunst, 83 W. Va. 456, 98 S. 
E. 559; Yost V. Wills, 86 W. Va. 71, 
102 S. E. 728. 

C. CONCURRENT JURISDICTION 
OF ^EQUITY AND LAW. 

A court of equity will interpose, 
even lin the class of cases where courts 
of law have concurrent jurisdiction, 
and without the existence of a specific 
ground of equity, whenever it appears 
that the remedy at law is less ade- 
quate than that in equity to do full 
and complete justice between the par- 
tics; and it, therefore, follows that each 
case must be determined upon its own 
merits. Oglesby Co. v, Ould Co., 117 
Va. 546, 556, 85 S. E. 475. See State v. 
EhrKck, 65 W. Va. 700, 64 S. E. 935; 
Eastern Oil Co. v. Coulehan, ^5 W. 
Va. 531, 64 S. E. 836; Prewett v. Cit- 



izens Nat. Bank, 66 W. Va. 184, 66 S. 
E. 231; Kabler tv Spencer^ .114 Val. 
589, 77 S. E. 504; Wilson v. McCon- 
nell, 72 W. Va. 81, 77 S. E. 540; Sperry 
V. Premier Pocahontas Collieries Co., 
87 W. Va. 223, 104 S. E. 486. 

D. RETENTION FOR COMPLETE 
RELIEF. 

Generally where a court of equity 
has once obtadned jurisdiction of a 
cause, it will retain it for all purposes 
and administer complete relief. Carls- 
bad Mfg. Co. V, Kelley, 84 W. Va. 
190, 100 S. E. 65; Smith v. Root, 66 
W. Va. 633, 66 S. E. 1005; Tiller v. 
Excelsior Coal, etc^ Corp., 110 Va. 151, 
65S. E. 507; Woolfolkv. Graves, 113 Va. 
182, 69 S. E. 1039, 73 S. E. 721; Dud- 
ley V. Niswander, 65 W. Va. 461, 64 
S. E. 745; Morison v, American Ass'n, 
110 Va. 91, 65 S. E. 469; Ely v. John- 
son, 114 Va, 31, 33, 75 S. E. 748; 
Smith V. White, 71 W. Va. 639, 78 S. 

E. 378, 379. 



ADJACENT. — Adjacent is frequently used "in the sense of being near and 
in the vicinity or neighborhood." Whealton v. Doughty, 116 Va. 566, 82 S. E. 
94. S<e post. BOUNDARIES. 



ADJOINING LANDOWNERS. 

Vsl. In General^ 64. 
L Use of Property, 64. 
n. Lateral and Subjacent Support, 64. 

A. Right to Support, 64. 

1. Land in Natural Condition, 64. 

2. Buildings in Addition to Land, 65. 

3. Duty of Excavating Owner, 65. 

4. Duty of Adjoining Owner, 67. 

5. Actions for Damages, 67. 

a. General Rule, 67. 

b. Defenses, 67. 

c. Pleading, 67. 

m. Light and Air, 67. 

B. Obstruction of, 67. 

CROSS REFERENCES. 

See the title ADJOINING LANDOWNERS, vol. 1, p. 175, and references 
there given. In addition, see post, EVIDENCE; FISH AND FISHERIES; 



64 



Adjoining Landowners 



INJUNCTIONS; INSTRUCTIONS. As to how drainage rights are acquired 
by adjoining landowners, under C(»de Provisions, see post, DRAINS AND 
SEWERS. As to Code sections applicable to the rights, duties, etc., of the 
owners of adjoining fishing shores, see post, FISH AND FISHERIES. As to 
notice to adjoining landowners of petition to correct errors in land grant, see 
post, PUBLIC LANDS. 



^I. IN GENERAL. 

Partition and Coterminous Own- 
ers.— Barnes Code, ch. 79, §§ 7-13; Va. 
Code 1W9, §§ 5297-5279. Sec gen- 
erally, post, PARTITION. 

L USE OF PROPERTY. 

In Gencnd. — The limit up to which 
a man may impair his neighbor's en- 
joyment of his estate by the mode of 
using his own, is fixed by external 
standards only, motive or interest be- 
ing immaterial. Koblegard v. Hale, 
60 W. Va. 37, 39, 53 S. E. 793. 

A man is bound to use his premises 
so as not to injure hiis neighbor's prop- 
erty. Weaver Mercantile Co. v. Thur- 
mond, 68 W. Va. 530, 70 S. E. 126. 

"A man who erects a structure upon 
his premises which, because of neg- 
lect to take care of it, becomes a nui- 
sance, either to the public or to the 
property of an adjoining owner, is lia- 
ble. He is bound, at his peril, to pre- 
vent it from injuring the property of 
his neighbor." Weaver Mercantile Co. 
V. Thurmond, 68 W. Va. 532, 70 
S. E. 126. See post, NUI'SANCES. 

Storage of Dangerous Substances. — 
See post, NUISANCES; EXPLO- 
SIONS AND EXPLOSIVES. 

"We thrink that the true rule of 
law is, that the person who for his own 
purposes brings on his lands and col- 
lects and keeps there anything likely 
to do mischief if it escapes, must keep 
it in at his peril, and, if he does not 
do so, is prima facie answerable for 
all the damage which is the natural 
consequence of its escape. He can ex- 
cuse himself by showing that the es- 
cape was owing to the plaintifTs de- 
fault, or perhaps that the escape was 
the consequence of vis major, or the 
act of God." Weaver v. Mercantile 



Co. r. Thurmond, 68 W. Va. 530, 534, 
70 S. E. 126. 

Hcatr-See post, NUISANCES. 

Water^See post, WATER AND 
WATERCOURSES. 

II. LATERAL AND SUBJACENT 

SUPPORT. 

A. RIGHT TO SUPPORT. 

1. Land in Natural Condition. 

See post, "Duty ' ojf Excavating 
Owner," II, A, 3. 

An owner of land is entitled, ex jure 
naturae, to lateral support in the ad- 
jacent land for his soil. Walker v, Stro- 
snider, 67 W. Va. 39, 67 S. E. 1087; 
Kunst V, Grafton, 67 W. Va. 20, 25, 67 
S. E. 74. 

Where one in improving his own 
property fails to exercise the ordinary 
care, prudence, skill reasonably dic- 
tated by the situation and circum- 
stances as due for the protection of 
the building standing on an adjodn- 
ing lot, and thereby injures the same, 
he is liable for the injury, whether 
caused by affecting the lateral support 
of the soil of the adjoining lot or other- 
wise. Voeckler v. Stroehmann's Vi- 
enna Bakery, 75 W. Va. 384, 83 S. 
E. 1025. 

An excavation, made by an adjacent 
owner, so as to take away the lateral 
support, afforded to bis neighbor's 
ground, by the earth so removed, and 
cause it, of its own weight, to fall, 
slide or break away, makes the former 
liable for the injury, no matter how 
carefully he may have excavated. Such 
right of support is a property rig^ht 
and absolute. Walker v, Strosnider, 67 
W. Va. 39, 67 S. E. 1087. 

Pressure. — "Whether done by direct 
excavation or by something else, an 
adjoining owner can not deprive his 



Adjoining Landowners, 



65 



neighbor of lateral support for the soil. 
Though one builds a heavy building on 
the surface of the ground, if he does 
it so negligently as to have insecure 
foundation, and the pressing down of 
the same takes away lateral support 
from the adjacent land, there is lia- 
bility." Voeckler v. Stroehmann's Vi- 
enna Bakery, 75 W. Va. 384, 387, 83 
S. E. 10^5. 

Scope of Doctrine. — "The doctrine 
of justice contained in the maxim, 
'Sic utere tuo ut alienum non laedas,' 
goes further in its application between 
adjoining land owners than that the 
one can not carelessly injure a build- 
ing of the other by affecting the lat- 
eral support of the sail of the latter. 
A more direct injury to a building of 
the adjoining owner, done carelessly in 
the removal or erection of a house in 
juxtaposition thereto, certainly comes 
under the maxim. The wall of the ad- 
joining owner above ground can not 
be carelessly cut into,, or otherwise in- 
juriously affected. Broom's Legal 
Maxims (8th ed.), 292. True, the one 
owes no right of lateral support for the 
buildings of the other. But if the one 
is about to remove an old building, he 
must observe the situation of his neigh- 
bor, and in removing the building do 
nothing on his own land carelessly to 
the injury of the latter. 2 Washburn 
on Real Property (6th ed.). § 1299. 
The former is not required to prop 
or shore up to protect his neighbor. 
That extraordinary care is on the 
owner of the building that may be af- 
fected by the removal of the adjoin- 
ing building. Washburn on Easements 
(4th ed.), 604. But the owner of the 
building that is being removed, or of 
one being erected, is liable when the 
work is done without reasonable care 
under all the circumstances, to the in- 
jury of the adjoining building." Voeck- 
ler V. Stroehmann's Vienna Bakery, 75 
W. Va. 384, 387, 83 S. E. 1025. 

Architect and Contractor. — Though 
one in improving his own property em- 
ploys therefor a competent architect 
—5 



and a skilled contractor, if the work 
remains under his control and the archi- 
tect and the contractor merely repre- 
sent him as to the means of doing the 
same, he is not by their employment 
absolved from liability for injury to 
adjoining property caused by failure 
to exercise care for its protection. 
Voeckler v. Stroehmann's Vienna 
Bakery, 75 W. Va. 384, 83 S. E. 1025. 

2. Buildings in Addition to Land. 

The right to lateral support applies 
only to land in its natural state. Ste- 
venson V. Wallace, 27 Gratt. (68 Va.) 
77; Tunstall v. Christian, 80 Va. 1. 
These and other authorities hold that 
an adjoining owner is not entitled to 
lateral support for buildings or other 
artificial structures. Kunst v. Grafton, 
67 W. Va. 20, 2-5, 67 S. E. 74; Walker 
V. iStrosnider, 67 W. Va. 39, 67 S. E. 
1087. ' 

Liability for Gross NegHgence. — 
Though an adjoining owner has no 
right of support in his neighbor's land 
for his buildings, unless he lias ac- 
quired it by grant or otherwise, and 
the latter may excavate in his land so 
as to cause them to fall, without com- 
mitting a trespass or taking away a 
property right, provided the adjacent 
soil would not have fallen of its own 
weight, he may nevertheless be liable, 
in respect /to his conduct, for the in- 
jury done. Walker v. Strosnider, 67 
W. Va. 39, te7 S. E. 1087. 

3. Duty of Excavating Owner. 
Mining.— Va. Code 1919, §§ 6287, 

J5289. And see tv>st, MINES \AND 
MINING. \ 

Must Exercise Care and SkilL — An 
adjoining owner, excavating on his 
own land, must exercise reasonable 
care, prudence and skill, in doing so, 
for the safety of buildings, if any, 
standing on the adjacent land. Walker 
V, Strosnider, 67 W. Va. 39, 67 S. 'E. 
1087. ( 

If an adjoining owner, about to ex- 
cavate, along the side of a btsilding, 
belonging to another person, for the 



66 



Adjoining Landowners 



erection of a building on his own prop- 
erty, adopt, as a means of protecting 
the building, the cutting of a trench 
and construction of a concrete retain- 
ing wall therein, four feet from the 
building along the side thereof, and then 
rMnning directly to one corner thereof, 
and let the work of cutting the trench 
and constructing the retaining wall to 
contractors, under contracts, leaving 
to them no discretion as to where or 
how such wall shall {be constructed 
and such measure of protection does 
not amount to the exercise of reason- 
able and ordinary care for the safety 
of the building, (and, by reason of such 
neglect, the building fall, the employer 
is liable. Walker v. Strosnider, 67 W. 
Va. 39, 67 S. E. 1087. 

The duty of the owner of a bwlding 
to prop it up, if necessary, is not in- 
consistent with the requirement of care 
on the part of the adjoining owner in 
the improvement of his property. If 
the latter exercises reasonable care and 
(injury nevertheless results, he is not 
liable, the loss being attributable in 
law to the failure of the owner to do 
further things necessary to absolute 
security. If, on the contrary, he did 
not exercise such care he is liable, al- 
though the owner could have Ipre- 
vented the injury. Walker v. Strosni- 
der, «7 fW. Va. 39, 67 S. E. 1087. 

Must Refrain from Collateral Negli- 
gence. — In altering the condition of his 
land, (adjoining another's building, by 
excavating the soil and replacing it 
with a structure, the owner must not 
only abstain from collateral negligent 
or wrongful acts, such as unnecessary 
heavy blasting, digging out the ad- 
jacent wall, projecting heavy articles 
against the wall or building, and the 
like, but must perform the work with 
reasonable care for the safety of the 
adjacent building, such as diligence ^n 
the construction of his wall after hav- 
ing removed the soil, removal of the 
soil and replacement thereof with the 
wall by sections, if necessary as a 
measure of reasonable precaution, or 



the adoption of other reasonable and 
practicable precautions. ' Walker v. 
Strosnider, 67 W. Va. 139^ 67 S. E. 
1087. 

Need Not Adopt Unusual Pr«cau. 
tions. — Though this duty, respecting 
adjacent 'buildings, iis imposed by law 
upon a person, while engaged in alter- 
ing the condition of his own property, 
he is not a guarantor of their safety, 
nor bound to take precautions, or 
adopt measures, for their protection 
beyond such as are reasonably practi- 
cable, not unduly expensive, and 
amount to reasonable and /ordinary care 
and prudence for the safety. Walker 
r. Strosnider, 67 W. Va. 39, ^7 S. E. 
1087. 

Temporary Support to Adjacent 
Building. — In such case, the measure 
of his duty goes beyond the exercise 
of care tin making the excavation, a 
mere incident of the alteration in- 
tended, and extends to reasonable 
means of temporary support of the ad- 
jacent building, while the work of 
erecting the new structure is in prog- 
ress. Walker v. Strosnider, 67 W. Va. 
39. 67 S. E. 1087. 

Duty to Give Notice of Intention. — 
In such case, the adjoining owner is 
under the further duty of giving the 
owner of the building notice of his 
intention to alter the condition of his 
property, *the character of the alteration 
to be made and the time thereof, and 
allow him opportunity to adopt such 
further measures for the absolute pro- 
tection and security of his building as he 
may see fit to adopt. Walker v. Stro- 
snider, 67 W. Va. 39, 67 8. E. 1087. 

Object of Notice^-Where the ad- 
joining owner has given the owner of 
the building notice of his intention to 
alter the condition of his propertj', 
such notice or knowledge on the part 
of 'the owner of the building does not 
absolve the adjoining owner from duty 
to exercise reasonable care and pru- 
dence to avoid injury to the building 
in improving his own property. The 
giving of such notice, when necessary. 



Adjournment 



67 



is amply an additional precaution, 
omission of which would, under some 
circumstances, amount to negligence. 
Walker v. Strosnider, 67 W. Va. 39, 
67 S. E. 1087. 

Notice Not Necessary in All Cases. 
—The giving of formal notice is un- 
necessary tin such case, if the owner 
of the building has full knowledge of 
the character and time of the making 
of the alteration and opportunity to 
adopt protective measures for the 
safety of his building. Walker v, Stro- 
snider, 67 W. Va. 39, 67 S. E. 1087. 

4. Duty of Adjoining Owner. 

See ante, "Duty of Excavating 
Owner," II, A. 3. 

5. Actions for Damages. 

a. tjeneral Rule. 

* 

Tenant of Injured House. — In the 

case of the fall of a building, occa- 
sioned by negligent excavation, a ten- 
ant of a single floor or room thereof, 
deprived of his right of occupancy and 
use and sustaining loss of personal 
property, by reason of the fall, has a 
right of action for at least nominal 
damages, in respect to the tenancy, and 
for consequential damages, in respect 
to the personal property injured and 
destroyed. Walker v. iStrosnider, 67 
W. Va. 39, ©7 S. E. 1087. . 

b. Defenses. 

Condition of Building. — Neither de- 
fective or improper construction of the 



building, nor its use for manufacturing 
purposes, involving the running of ma- 
chinery therein, will bar an action for 
damages for injury thereto, resulting 
from negligent excavating, .under the 
law of contributory negligence. The 
excavator must deal with the condi- 
tions as he finds them, using reasonable 
and ordinary care, under all the cir- 
cumstances to avoid injury to the build- 
ing and fits contents. Walker v. Stro- 
snider, 67 W. Ya. 39, 67 S. E. 1087. 

c. Pleading. 

It sufHces in a declaration, seeking 
damages for an injury to a buildnng or 
a tenant thereof, resulting from negli- 
gent excavation, to set forth the rela- 
tive situation of the properties, the in- 
terest of the plaintiff, the duty of the 
defendant, the acts done and the re- 
sults, and charge that the work was 
done injuriously, wrongfully, carelessly 
and negligently. Walker v. Strosnider, 
67 W. Va. 39, .67 S. E. 1087. 

III. LIGHT AND AIR. 

B. OBSTRUCTION OF. ; 

"This doctrine of ancient lights is not 
relied on to afford appellees' relief. 
Outside of the doctrine of ancient 
lights, under tfie common law, it seems 
that the owner of land has no Jegal 
right, in the absence of an easement, 
to the light and air unobstructed from 
adjorining land." Koblegard w. Hale, 
60 ;W. Va. 37, 39, 53 S. E. 793. See 
post, INJUNCTIONS. 



ADJOURNMENT. 

CROSS REFERENCES. 

See the title ADJOURNMENT, vol. 1, p. 179, and references there given. 
In addition, see post, COURTS; JUSTICES OF THE PEACE; MANDA- 
MUS; PROHIBITION; REFERENCE AND COMMISSIONERS; STATE. 



Can not Adjourn to Day Beyond 

TcmL— While a judge of a circuit court 
may, under the provisions of § 3059 of 
the Va. Code (Va. Code 1919, § 5893) 
continue the term of a court by ad- 
journment until after the beginning of 



the term of the court for any other 
county of his circuit, he is expressly 
prohibited from continuing the term 
for a county or city beyond the day 
fixed by law for the beginning of the 
next regular court for that county or 



68 



Adjournment 



city. Virginia Beach, etc., Co. v. 
Murray, 113 Va. 692, 75 S. E. 81. 

W. Va. Code, ch. 114, § 2, authoriz- 
ing the supreme court of appeals, cir- 
cuit and county courts to adjourn from 
day to 'day until their business is dis- 
patched, or until the ends of their 
terms does not limit or restrict the 
common-law powers of such courts to 
adjourn to a distant day, or, as it is 
sometimes expressed, from time to 
time, provided the day fixed be not be- 
yond the time to which the term could 
legally continue. Mano v. County 
Court, 58 W. Va. 651, 652, 52 S. E. 
776. 

Va. Code 1919, § 5970 provides: 
"After a court is opened it shall, dur- 
ing the term, adjourn from day to day, 
unless the court shall order otherwise, 
and iif it fail to sit on any day to which 
it is adjourned, it may nevertheless sit 
on a subseq-uent day of the term; pro- 
vided, in the case of a circuit or corpo- 
ration court, there be not more than 
three consecutive days of such failure." 

Court of Record May Adjourn from 
Day to Day or Take a (Recess for a 
Period Not Exceeding 30 Days. — Va. 
Code 1919, § 5959. 

Supreme Court of •Appeals. — ^Va. 
Code 1919, § 5970; Barnes Code, ch. 
113. § 11. 

Adjournment of (Circuit Court. — Va. 
Code 1919, §§ 5893, 5895; Barnes Code, 
ch. 112, §§ 4, 6. 

The circuit courts have common law 
powers to adjourn to a distant day, or 
from time 'to time, provided such dis- 
tant day is not beyond the time to 
which the term could legally continue. 
Rockhold V. Cabot, 81 W. Va. 697, 95 
S. E. 804. 

Section 4 of chapter 112 of the Code 
providing that when a term of the cir- 
cuit court is about to end ^vithout d's- 
patching all its business, the judge 
thereof may, by an order entered of 
record, adjourn the holding of such 
court to any future day on which "he 
is not tequired by law to hold the 
court in some other county, and pro- 



viding that when this is done the judg- 
ments and decrees already rendered 
shall become final, does not restrict 
the common law powers of the circuit 
courts to adjourn from time to time, or 
to a distant day, providing such ad- 
journment be to a day not beyond the 
time to which the term could legally 
' continue. Rockhold v, Cabot, 81 W. 
j Va. 697, 95 S. E. 804. 
I In order that the judgments and de- 
j crees rendered by a circuit court may 
become final, upon adjournment being 
, taken to a distant day, the order tak- 
j ing §uch adjournment must by clear 
i language show that it is the purpose 
of the court to end its term at that 
time, and that upon reconvening on the 
day fixed therefor lit will sit in an ad- 
journed term. Rockhold v, Cabot, 81 
W. Va. 697, 95 S. E. 804. 

Mandamus and Prohibition Proceed- 
ings.— Va. Code 1919, § 5835. 

Proceedings of Commissioner in 
Chancery. — Va. Code 1919, §§ 6183, 
, 6184. 

Adjournment by Justice. — Va. Code 
1919, § 4839. 

Adjournment of Legislature. — fVa. 
Const. § 46; West Va. Const. Art. 6, 
§ 23. 

Effect of Leaving Bench without Or- 
der for Adjournment. — Where the 
; judge leaves the bench without any 
order for final adjournment, and with- 
out again holding court for that term, 
or, intendng to do so, until a day after 
the beginning of the next term, then 
the day on which he so leaves the 
bench must be treated as the end of 
that term, at least for the purpose of 
signing bills of exception. Virgfinia 
Beach, etc., Co. v. Murray, 113 Va. 692. 
75 S. E. 81. 

Adjournment to Procure Attendance 
of Witnesses. — ^Upon the trial of ^ fel- 
ony case where the jury is not required 
to be kept together, the propriety of 
adjourning the jury from time to time 
to secure the presence of a witness, 
lies lin the discretion of the trial court, 
subject to review; but upon review, the 



Admiralty 



69 



exercise of this discretion is not cause 
for reversal where it is not suggested 
that the jury has been tampered with, 
and it appears from the whole case that 
the accused has not been prejudiced. 
Bennett r. Commonwealth, 106 Va. 
834, 55 S. E. «98. 

While not approving the practice of 
forcing a prisoner into trial in the ab- 
sence of a material witness, upon a 
promise to have the witness present 
before the end of the trial, the verdict 
of the jury will not be set asdde for 
that reason, where it appears that the 
witness, who was detained at home by 



sickness, did, after several adjourn- 
ments of the case to secure his pres- 
ence, appear and testify in behalf of 
the prisoner, and !it does not appear 
that the prisoner was, or could have 
been, prejudiced by such adjournments. 
Bennett v. Commonwealth, 106 Va. 
834, 55 S. E. 698. 

From Saturday to Monday. — Where 
a law authorizes a court, or the pro- 
ceedings of an officer to be adjourned 
from day to day, an adjournment 
from Saturday to Monday shall be le- 
gal Va. Code 1919, § 5, cl. 9. 



ADJUDICATING PRINCIPLES OF CAUSE.— See Richmond v. Rich- 
mond, 62 W. Va. 206, 57 S. E. 736. Also, see post, FORMER ADJUDICA- 
TION OR RES ADJUDICATA. 

ADJUSTERS.— See Bond v. National Fire Ins. Co., 77 W. Va. 736, 88 S. E 
389. See also post, FIRE INSURANCE. 

ADMINISTRATORS — ADMINISTRATION. — See post, EXECUTORS 
AND ADMINISTRATORS. 



ADMIRALTY. 

CROSS REFERENCES. 

See the title ADMIRALTY, vol. 1, p. 182, and references there given. In 
addition, see post, NAVIGABLE WATERS; PILOTS; SHIPS AND SHIP- 
PING. 



A court of admiralty has no juris- 
diction to determine the equitable title 
or conflicting claims to partner- 
ship property, although it consists of 



a steamboat and attendant barges em- 
ployed in commerce upon navigable 
waters of the Umited States. Hulings 
V. Jones, 63 W. Va. 696, 60 S. E. 874. 



ADMISSIONS AND DECLARATIONS.— See post, AGENCY; CONFES- 
SIONS; DECLARATIONS AND ADMISSIONS; DYING DECLARA- 
TIONS; HEARSAY EVIDENCE. 



ADJUTANT GENERAL.— See post, MILITIA. 

ADOPTION.— See post, PARENT AND CHILD. 

AD QU^STIONEM FACTI, ETC.— "Ad quaestionem facti non respondent 
judices; ad quaestionem legis non respondent juratores" (to a question of fact 
the judges do not answer; to a question of law the jurors do not answer). 
State V. Jackson, 56 W. Va. 558, 578, 49 S. E. 465. 



ADULTERATION. 

CROSS REFERENCES. 

See the title ADULTERATION, vol. 1, p. 183, and references there given. 
In addition, see post, DRUGS; DRUGGISTS; FERTILIZERS; FOOD; 
INSPECTION. 



Dairy and Food Conunissioner — In- 
spection, Etc.— Va. Code 1919, §§ 1153- 
1228; Va. Acts 1918, p. 483; Acts 1920, p. 
547; Barnes Code, ch. 150, •§§ 1, et seq., 
§§ 15-28. 

Same— Stock Goods, Etc.— Va. Code 
1919, §§ 1229-1249; Barnes Code, ch. 
149, § 14. 

Adulteration of Commercial Feeding 
StuflfB— Trade Terms. — Plaintiff sold 
defendant a commodity designated in 
the contract as "Winter Wheat Bran.** 
Iti an action by plaintiff against de- 
fendant for failure to jaccept the bran, 
evidence that under the usage or cus- 
tom bf the trade "Winter Wheat Bran" 
contained a certain percentage of 
screenings, did not contravene the provi- 
sions of the State and Federal statutes 
against the adulteration and misbrand- 
ing of commercial feeding stuffs, it not 
l-eing claimed that the screenings in 
the bran constituted an unlawful adul- 
teration, nor that the tags which were 
in fact placed on the sacks, indicat- 
ing the presence of screenings, consti- 
tuted a misbranding. There is noth- 



ing in the statutes, State or iFederal, 
to in any way Hnterfere with the rules 
of evidence in cases where parties have 
employed trade terms having a defi- 
nite meaning, even though these stat- 
utes require that meaning to be fully 
defined in the stamps placed on the 
goods. Walker v. Gateway 'Milling Co.. 
121 Va. 217, 92 S. E. 826. 

Inspection of Flour, >Etc. — Va. Code 
1919, §§ 1400-1443; Barnes Code, ch. 
150, § 1, et seq. 

Drugs.- Va. ' Code 1919, §§ 1659. 
1663; Barnes Code 1918, 'ch. 150, §§ 
10. 19a, 20b (l)-(5), 20b (8). 

Adulterating Food, Drink, or Medi- 
cine.— Va. Code 1919, § 1707; Barnes 
Code 1918. ch. 150, §§ 19-20b (6). 

Sale of Bakery Products.— Pollard's 
Code 1930, p. 781; Va. Acts 1920, p. 
57C. 

Ice Cream ' and Milk. — Pollard's 
Code 1^20, §§ 1215-1217. pp. 59-60; Va. 
Acts 1920, p. 547. 

Cold Storage.- Va. Acts 1919, p. 87. 



ADULTERY, FORNICATION AND LEWDNESS. 

I. Adultery. 

C. By Statute. 

2. Punishment. 

3. Removal of County Officers for Adultery. 

D. Pleading and Practice. 

1. Indictment, Presentment and Information. 

E. Evidence. 

F. Conspiracy to Cause Wife to Commit Adultery. 

n. Fornication. 

Cj^. Indictment. 

D. Evidence. 

E. Punishment. 

F. Jurisdiction. 



70 



Adultery, Fornication and Lewdness 



71 



m. Lewdness. 

A. What Constitutes Lewd and Lascivious Cohabitation by Statute, 

1. In General. 

5. What Necessary to Sustain Action. 

7. Punishment. 

B. Pleading and Practice. 

3. Evidence. 

IV. Prostitution. 
V. Pandering. 

CROSS REFERENCES. 

See the title ADULTERY. FORNICATION AND LEWDNESS, vol. 1, p. 
184, and references there given. In addition, see post, CRIMINAL LAW; 
DISORDERLY HOUSE; INDICTMENTS, INFORMATIONS AND PRE- 
SENTMENTS. As to adultery as a ground for divorce, see post, DIVORCE. 
As to adultery as barring dower, see post, DOWER. 



I. ADULTERY. 

C. 'BY STATUTE. 

2. Punishment. 

Statkitory Provislbns. — Va« Code 
1919, § 4543; Barnes W. Va. Code, p. 
1220, ch. 149, § 6. 

3. Removal of County Officer for Adul- 

tery. 

Barnes W. |Va. Code, p. 112, ch. 7, 

§ 7. 

D. PLEADING AND PRACTICE. 

1. Indictment, Presentment and Infor- 
mation. 

Statutory 'Form. — Barnes W. Va. 
Code, p. 1220, ch. 149, § '6. 

E. EVIDENCE. 

Presumption thatt Defendant Un- 
married. — Barnes W. Va. Code, p. 
1220, ch. 149, § 7. 

F. CONSPIRACY TO CAUSE 
WIFE TO COMMIT ADUL- 
TERY. 

Va. Code 1919, § 4544. 

11. FORNICATION. 

C/2. INDICTMENT. 

Statutory ; Form. — Barnes' W. Va. 
Code, p. 1220, ch. 149, § «. 
D. EVIDENCE. 

Presumption as to Marriage. — 



Barnes W. Va. Code, p. 1220, ch. 149, 
§ 7. 

E. PUNISHMENT. 

Va. Code 1919, § 4543; Barnes W. 
Va. Code, p. 1220, ch. 149, § 6. 

F. JURISDICTION. 

Justice of Peace Has Jurisdiction. — 
Barnes !W. Va. Code, p. 716, ch. 50, 
§ 219. , 

III. LEWDNESS. 

A. WHAT CONSTITUTES LEWD 
AND LASCIVIOUS COHABI- 
TATION BY .STATUTE. 

1. In General. ^ 

"In order to convict of "lewd and las- 
civious association and cohabitation 
together* under § 4358, W. Va. (Barnes 
Code, p. 1220, ch. 149, § 7), Code 1906, 
it is necessary to prove that the de- 
fendants lived together as husband and 
wife; for this ds the meaning compre- 
hended by the words 'cohabit together,* 
as used in the statute referred to.*' 
State V, White, 66 W. Va. 45, 47, 66 
S. E. 20; State v, Ramage, 75 W. Va. 
524, 84 S. E. 246. 

But dt is not necessary that they 
should hold themselves out to the pub- 
lic as husband and wife. State v. Ram- 
age, 75 W. Va. 524, 84 iS. E. 246. 

Relation Habitual and Continuous. — 
Occasional acts of illicit intercourse ^o 



72 



Advancements 



not prove a tviolation of the statute, al- 
though the man and woman occupy 
the s?me house. The illicit relation 
must be habitual and continuous. State 
V. Ramage, 75 iW. Va. 524, 526, 84 S. 
E. 246. 

Purpose of Statute.— " 'It is the 
more indecent, open, and demoralizing 
example of living in adultery or forni- 
cation as man and wife that the statute 
was designed to prevent/ Pruner v. 
Commonwealth, 82 Va. 115." State v. 
Ramage, 75 W. Va. 524, 527, 84 S. E. 
240. 

Statutory Provisions. — Va. Code 
1919, § 4545; Barnes W. Va. Code, p. 
1220, ch. 149, § 7. 

5. What Necessary to Sustain Action. 

See ante, "In General," III, A, 1. 

7. Punishment. 

Statutory Provisions, — Va. Code 
1919, § 4545; Barnes W. Va, Code, p. 
1220, ch. 149, § 7. 

B. PLEADING AND PRACTICE. 

3. Evidence. 

Presiunption that Defendant Un- 
married. — Barnes W. Va. Code, p. 
1220. ch. 149, § 7. 

Sufficiency of Proof. — Proof that de- 



fendants occupied the same house to- 
gether, the woman in the capacity of 
house servant, sleeping at night, fin sep- 
arate rooms, and that on one occasion 
she was seen to leave her room and 
enter his bed room in the night time, 
clandestinely, and remain for an hour, 
is not sufficient evidence to sustain a 
verdict of guilty. The jury can not in- 
fer from the one act of -incontinence, 
clandestinely committed, that* such acts 
were habitual and continuous. State 
r. Ramage, 75 W. Va. 524, S4 S. E. 



j46. 



IV. PROSTITUTION. 



See post DISORDERLY HOUSES. 
Acts 1918, p. 436, Pollard's Code Bien- 
nial 1920, p. 441. 

Examination and Punishment of 
Prostitutes. — Acts 1918, p. 970, Pol- 
lard's Code Biennial 1920, p. 643. 

Procuring Female for House of Pros- 
tition. — Barnes W. Va. Code, p. 
1193, ch. 144, § 16b (l). 

Detaining T'emale in House of Pros- 
titution. — Barnes W, Va. Code, p. 1193, 
ch. 144, § 16a. 

V. PANDERING. 

Va. Code 1919, § 4579. 



ADVANCEMENTS. 

I. Definitions and Distinctions, 73. 
n. Whether a Donation Is an Advancement, 73. 

YzK, In General, 73. 

A. Depends upon Intention, 73. 

B. When Advancement Presumed, 74. 

E. Illustrations, 74. 

F. Evidence, 75. 

mV^. Change of Advancement to Oift, 75.' 

VI. Between Whom Advancements May Be Made, 75. 

A. Parent and Child, 75. 

B. Parent-in-Law and Son-in-Law, 75. 

C. Husband and Wife, 76. 

VI V^. Operation and Effect of Advancement, 76. 

Vn. Accounting for Advancements— Must Be Brought 
Hotchpot, 76. 

Vm. Ademption of Legacies, 78. 



into 



Advancements 



73^ 



IX. Valuation of Advancements, 78. 

How Computed, 78. 
B. Interest, 78. 

CROSS REFERENCES. 

See the title ADVANCEMENTS, vol. 1, p. 189, and references there given. 
In addition, see post, DESCENT AND DISTRIBUTION; EXECUTORS 
AND ADMINISTRATORS; GIFTS; HUSBAND AND WIFE; INFANTS; 
PARENT AND CHILD; TRUSTS AND TRUSTEES; WILLS. 



I. DEFINITIONS AND DISTINC- 
TIONS. 

In its strictest technical sense an ad- 
vancement is a perfect and irrevocable ; 
gift, not required by law, made by a 
parent during his lifetime to his child, 
with the intention on the part of the ; 
donor that such gift shall represent a 
part or the whole of the portion of the 
donor's estate that the donee would be 
entitled "to on the death of the donor 
intestate. Hill v. iStark, 122 (Va. 280, 
P4 S. E. 7^2. 

An advancement is a gift from an 
ancestor to a descendant for the pur- 
pose of advancing him in life in antici- 
pation of the final division of the 
donor's estate between his descendants 
after his death. Payne v. ^ayne, 128 
Va. 33, 104 S. E. 712. 

Gifts Distinguished. — If, from all the 
circumstances surrounding a particular 
case, it can be said that a parent in- 
tended a transfer of property to a chiild 
to represent a portion of the child's 
supposed share in the parent's estate, 
such transfer will be treated in law as 
an advancement. The converse is, as 
a matter of course, true; hence, where 
it appears that the ancestor intended 
that a gift to his child should not be 
treated as an advancement, such in- 
tention will be respected and enforced. 

Payne v. Payne, 128 -Va. (33, 104 S. E. 

713. 

Loan Not 'An Advancement. — A will 
declared that "any person who shall 
take under my will and who shall be 
indebted to my estate shall pay any 
sums owing before participating in any 
estate received hereunder." Two of 
the legatees were indebted to the tes- 



tator, evidenced by notes payable in In- 
diana, carrying eight per cent, interest. 
The bill alleges that this rate was legal 
in Indiana, and the answers of the leg- 
atees do ,not deny that fact. The leg- 
atees admit that a rate of six per cent, 
would apply, if any interest at all is ta 
be charged, but insist that the provi- 
sions of the will are inconsistient with 
a charge of any interest, and that the 
sums received should be treated as 
advancements. The trial court decided 
that interest should be charged at 
eight per cent., but if charged at only 
six per cent, their whole interest in the 
estate would be consumed. Held: The 
claim of appellants that certain notes 
given ,by them to the testator, in his 
lifetime, for loans made to them, are 
barred by the common law presump- 
tion of payment, and also that the 
sums represented by such notes should 
be treated as advancements, is not sus- 
tained by the evidence. Taylor v. Car- 
ter, 117 Va. 845, 86 S. E. 120. 

II. WHETHER A DONATION IS 
AN ADVANCEMENT. 

VIA. IN .GENERAL. 

In general, two elements are essen- 
tial to constitute an advancement, a 
gift by the parent to the child and the 
intention by the donor that the gift 
shall be jan advancement. But the lat- 
ter may be inferred from the former. 
Nevertheless, a gift, 5n contradistinc- 
tion to a transfer for valuable consid- 
eration, is indispensable. Hall v. Stark, 
122 Va. 280, 94 S. E, 793. 

A. DEPENDS UPON INTENTION. 
See ante, "In General," II, ^A; 
post, "Husband and Wife." VI, C. 



74 



Advancements 



The intention of the testator deter- 
mines the question as to whether or 
not la gift is "an advancement. Payne 
V. Payne, 138 Ya. !33, 104 S. E. 712. See 
Neil v^ Flynn Lumber Co., 32 W. Va. 
24, 95 S. E. 523. 

B. WHEN ADVANCEMENT PRE- 

SUMED. 

See post, "Husband and Wife," VI, 

C. ! 

Where there is a gift from a parent 
to a child, supposdng the gift to be 
adapted to advance the latter in life, it 
would seem that there is a prima facie 
presumption that the gift is intended 
as an advancement. Payne v, Payne, 
128 Va. 33, 104 S. E. 712; PoflF v. Poff, 
128 Va. 62, 104 S. E. 719; Johnson v. 
Mundy, 123 Va. 730, 97 S. E. 564. 

Where a conveyance is made without 
consideration, or for a mere nominal 
consideration, by a father to one of his 
children, the same is prima facie an 
advancement. ' Neil r. Flynn Lumber 
Co., 82 W. Va. 24, 95 S. E. 523. 

A conveyance by a father of a por- 
tion of his land to one. of his sons, by 
a deed reciting no consideration, prac- 
tically contemporaneous with convey- 
ances to other children, admittedly 
made by way of advancement out of 
his estate, is presumptively an ad- 
vancement, and intended to be in lieu 
of the share in the land such son 
would have taken by partition on the 
death of the father intestate. White ik 
White, 64 W. Va. 30, 60 S. E. 885. 

Payment by 'Parent — Conveyance to 
Child. — Where the purchase money 
for land is paid by a parent but the 
conveyance is to the child, there is a 
presumption that the conveyance was 
intended as an advancement, and a 
trust does not ;arise in favor of the 
parent. Clary v. Spain, 119 Va. 58, 89 
S. E. 130. As to creation of trust un- 
der such circumstances, see post, 
TRUSTS AND TRUSTEES. 

Rebuttal of Presumption. — The pre- 
sumption lin favor of an advancement 
may be rebutted by evidence. Clary v. 



Spain, 119 Va. :58, 89 S. E. 130; Neil v. 
Flynn Lumber Co., 82 iW. Va. 24, 95 
S. E. 523. 

The presumption in favor of an ad- 
vancement must be rebutted by affirm- 
ative proof that the gift was not in- 
tended to be a gift by way of advance- 
ment. Poff V. Poff, \29j Va. 62, 104 S. 
E. 719. 

The presumption in favor of an ad- 
vancement may be overcome by proof 
of the "declarations of the grantor and 
the attendant circumstances showing a 
contrary purpose. Neil v. Flynn Lum- 
ber Co., "82 W. Va. 24, ^5 S. E. 523. 

Same — Evidence Held Insufficient. — 
W., in his lifetime, conveyed land to 
his daughter's husband, by deed recit- 
ing no consideration. Parol evidence 
oflFered \o rebut the presumption of 
advancement and to prove purchase, 
held insufficient for that purpose. 
White V. White, 72 W. Va. 144, 77 S. 
E. 911. 

Same — Declaration in Will Held In- 
sufficient. — In the instant case where 
a testator gave a farm to his younger 
sons, the following declarat'on in his 
will furnishes no affirmative proof that 
the gift of the farm was not intended 
to be a gift by way of advancement: 
"I have other property that I do not 
attempt to dispose of dn this will con- 
cerning the farm. I may some time in 
the future make a will as to the residue 
of my estate, or I may dispose of it in 
my lifetime, or !• may die intestate as 
to said residue." PoflF r. Poflf, 128 Va. 
62, 104 S. E. 719. 

E. ILLUSTRATIONS. 

In PoflF V. PoflF. 128 Va. 62, 104 S. 
E. "719, it was held that a gift of a 
farm under the will of a father to his 
younger sons was, under the circum- 
stances, a gift by way of advancement. 

In the instant case the will of tes- 
tator and the deeds under which he 
had granted property to his children in 
his lifetime contained internal affirm- 
ative evidence of the fact that the 
gifts were intended as advancements. 



Advancements 



75 



The gifts to the children were substan- 
tial, some about equal to and others 
exceeding in value their aliquot shares 
of the estate had it all been divided in 
accordance with the statute of descents 
and distributions. That the father in 
raalcing the gpfts to his children by 
deed and will had the final division of 
his property in mind was manifest. 
Held: That the gifts to the children 
were advancements. Payne v. Payne, 
128 Va. 33, 104 S. E. 712. 

Gift by Parent-in-Law to Son-in 
Law. — See post, "Parent-in-Law and 
Son-in-Law," VI, B. 

Transaction Not Constititting Ad- 
vancement — A contract was entered 
into between a mother and her son. 
The contract provided that the mother 
employed her son as her agent and at- 
torney in fact to manage and control 
ber interest in a partnership between 
herself and another, according to his 
judgment and discretion without any 
interference on the part of the mother. 
As compensation for his services the 
son was to receive the profits of the 
business; and if his mother died dur- 
ing the continuance of the partnership, 
her interest therein, including her con- 
tribution to the capital stock, was to 
pass to and become the property of 
the son, and should not pass to her 
personal representative, but should the 
son die during the continuance of the 
contract, then the mother was to have 
the original capital, but the profits 
were to go to the son's estate. The 
son also agreed to pay his mother the 
interest on the capital invested by her 
in the partnership during the contin- 
uance of the contract. Held: That, in 
this agreement all the elements of an 
executory contract between the mother 
and son were present, and that the con- 
tribution by the mother of the capital 
towards the formation of the partner- 
ship was not a gift by the mother to 
her son, and that he could not be com- 
pelled to bring it into hotchpot before 
participating an his mother's estate. 
Moreover, from the agreed statement 



of facts it appeared that the mother 
did not consider the capital advanced 
to the partnership part of her estate, or 
an advancement to her son, so that 
both of the essential elements of an 
advancement were wanting. Hill v. 
Stark, 123 Va. 280, W S. E. 792. 

V. EVIDENCE. 

See ante, "When Advancement Pre- 
sumed," II, B; post, "Husband and 
Wife," VI, C. 

The fact that a child who has re- 
ceived an advancement from his father, 
with full knowledge of his father's 
death and of the estate left by him, 
makes no claim to be entitled to fur- 
ther participate in the distribution or 
partition of the residue of the estate 
for more than twenty years is a cir- 
cumstance to be considered in deter- 
mining whether the advancement was 
received by him in relinquishment of 
his further right to participate in the 
estate. Neil z\ Flynn Lumber Co., 82 
W. Va. "24, 95 S. E. 523. 

III^. CHANGE OF ADVANCE- 
MENT TO GIFT. 

A parent who has made an advance- 
ment to one of his children and taken 
from him a writing evidencing the 
same can not thereafter, by a mere 
oral declaration, convert it into an ab- 
solute gift. Adams v. Adams, 82 W. 
Va. 244, 95 S. E. 859. 

VI. BETWEEN WHOM ADVANCE- 

MENT MAY BE MADE. 

A. PARENT AND CHILD. 

The doctrine of advancement is of 
most common application' in cases of 
transaction between parent and child. 
See ante, "Definitions and Distinctions," 
I; "Whether a Donation is an Advance- 
ment," II. 

D. PARENT-IN-LAW 'AND SON- 
TN-LAW^ 

A grant of land by the wife's father 
to the husband during coverture, re- 
citing no consideration, is prima facie 



76 Advancements 



deemed an advancement to the wife, for bis children by the distribution of 
White V. White, 72 W. Va. 144, 77 S. his estate among them before his death. 
E. 911. , Neil V, Flynn Lumber Co., 82 W. Va. 

C. HUSBAND AND WIFE. , ^^' ^^ ^- ^* ^^'^' 

Always Question of Intention— Evi- yjj ACCOUNTING FOR AD- 
dcnce.— An advancement, by a husband | VANCEMENTS— MUST BE 

for bis wife is always a question of in- ; BROUGHT INTO HOTCH- 
tention, and it may be shown by parol POT. ^ 

evidence that the purchase was in fact , _ __ t^ . • ,r r^ j 

exclusively for the benefit of the hus- ^Utatory ProvMwns^ - Va. Code 
band. Taylor v. Delaney, 118 Va. 203,.' '-^'S' § 5278; Barnes W. Va. Code, p. 

86 S E 831 ®"' ''^- ''^' § ^'• 

Payment by Husband^onvcyance ^ Intent of. The intent of § 5278 Va. 

to WHe.-Where the purchase pfice Statute Code of 1919, ,s to bnng about, 
of land »s paid by the husband, but \ ^\ ""^'y ^^ ^^V b*- *" «<!"«' <»'^'«'°« 

the conveyance is made to his wife. °ll^^ «t^t« °! » decedent among h.s 

£ ^^ .u-«« ♦..^e* ;.t children or other descendants, except 
no presumption of a resulting trust m ,r .. . r 

e r xi u 1 J ^^'^^r. K«* ;♦ SO far as he may have himself distnb- 

favor of the husband arises, but it -^ o^. , 

.„ . J J . c^'^ .,0 .>« ^A uted his estate unequally. Ihe de- 

will be regarded prima facie as an ad- . . , 

vancement to the wife. Taylor v. De- , ^^<=^"<i^"t ^'^^ ^^^ T"?*^"^ ^" advance- 
laney. 118 Va. 203. 86 S. E. 831. i '"^"^ ]' "^^ [^^"^^^^ *° ^^"»^"^^^. *° ^ 



Vli/i. OPERATION AND EFFECT 
OF ADVANCEMENT. 

See post, ''Accounting for Advance- 
ments — Must Be Brought into Hotch- 
pot," VII. 



redivision of the property by g'iving up 
what he has already received, but is 
only subjected to the alternative of so 
surrendering what he has received, or 
of being excluded from any participa- 
tion in the resiidue of the decedent's 



Where a child has received a certain estate which has not been disposed of. 
portion in full of his share of his fa- Payne r. Payne, 128 Va. 33, 104 S. E. 
ther's estate, on the death of his fa- ; 712; Poff v. Poff, 128 Va. 62, 104 S. 
ther, he, his children, and their gran- ! E. 719. 

tee, are ordinarily barred from further Doctrine at Conunon Law and in 
participation in the distribution or par- Virginia. — Under the Virginia statute 
tition of the residue of the estate. Xeil the doctrine of hotchpot has been 
z\ Flynn Lumber Co., 82 W. Va. 24, greatly enlarged. At the common law, 
95 S. E. 523. it only applied when the decedent died 



Whether an advancement made to a 
child by a father lis a bar to his further 



wholly intestate, while under the Vir- 
ginia statute (Code 1919, § 5278) it is 



participation in the distribution or par- : only necessary that there be a partial 
tition of the residue of the estate dc- ' intestacy. Payne v. Payne, 128 Va. 33, 
pends upon the intent and purpose of 104 S. E* 712. 

the father ill making it and the child Code of 1919, § 5278. is operative if 
in receiving it; and where such pur- 1 the decedent dies intestate as to part 
pose and intent does not appear from of his property and one or more of his 
any writing executed by the parties, or I descendants who have Received gifts 
either of them, the same may be de- by way of advancement, also claim the 
duced from the prior, contemporaneous right to participate in the distribution 
or subsequent declarations and state- of the property which has not been 
ments of the parties, their subsequent disposed of, either in the lifetime of 
conduct in relation to the property, as the decedent or by his will. The 
well as an evident purpose or design statute does not assume to interfere 
on the part of the grantor to provide with the freedom of the ancestor to 



Advancements 



77 



prefer one or more of his descendants 
in the distribution of his estate, but ap- 
plies only where, having distributed a 
part of his estate to them, he has left ' 
part of it undisposed of, to be distrib- 
uted under the statute of descents and 
distributions. Payne %\ Payne, 128 Va. 
33. 104 S. E. 712. 

The doctrine of advancements is ap- 
plicable only to the divisiion of the por- 
tion of the donor's estate of which he , 
dies intestate. PoflF r. PoflF, 128 Va. | 
63. 104 S. E. 719. \ 

When Doctrine Does Not Apply.— ! 
The doctrine does not apply unless 
the property has been received from 
the ancestor, either in his lifetime, or 
by his will, and by way of advance- 
ment. Payne v, Payne, 128 Va. 33, 104 
S. E. 712. 

Agreement to Relinquish AU Interest 
in Estate. — Upon the principle that 
inuality is equity, advancements in ^he 
lifetime of a parent must be brought 
into hotchpot by those who receive 
them, in order that there may be per- 
fect equality among those to share in 
the estate of the parent; and this rule 
is unaflFected by the fact that some of 
the heirs, at the time of receiving their 
advancements, entered linto covenants 
wth the parent, whereby they relin- 
ou'fhed all interest in or claim to any 
portion of the estate then owned or 
which might be thereafter acquired by 
the parent, and as to which he might 
die intestate. McCoy v. McCoy, 105 
Va. 829, 54 S. E. 9&5; Mort v. Jones. 
105 Va. 668, 51 S. E. ^20, 54 S. E. 857. 

If, however, part of the parent's real 
estate lies dn another state which up- 
holds such relinquishment, the proper 
method of procedure in this state is for 
the court to ascertain the entire estate 
of the parent, wherever situated, and 
then proceed to divide and distribute 
^^e estate in Virginia among all the 
^eirs and distributees, without ac- 
counting for such advancements, un- 
less it appears that the advancements 
so received, added to their aliquot por- 
tion of the estate in Varginia shall ex- 



ceed the shares of the other heirs in the 
entire estate, in which event those so 
advanced as aforesa»id should be re- 
quired to account for so much of such 
advancements to each of them as will 
produce equality. It is error to seek to 
enjoin those not advanced from enforc- 
ing the law of the situs of real estate 
as to the lands outsiide of Virginia. 
Mort V, Jones, 105 Va. 668, 51 S. E. 
220, 54 S. E. 857. 

A Child May Elect to Bring Prop- 
erty into Hotchpot or Keep What He 
Haa^ — A child who has received ad- 
vancements from his father during the 
latter's lifetime, may elect either to 
bring the property so advanced into 
hotchpot in a suit to distribute the fa- 
ther's estate and receive his share of 
the property to be distributed, or to 
take the property advanced as his full 
share without participating in the dis- 
tribution. If he elects to bring the ad- 
vancement into hotchpot, he is enti- 
tled to share in the property to be di- 
vided, being charged as against his 
"interest therein with the value of the 
property advanced as of the time of 
the advancement, but without interest; 
if he elects not to bring the advance- 
ment into the hotchpot, he will be de- 
barred from participation in the distri- 
bution, but his title to the property 
advanced, if incomplete, will be per- 
fected under a decree of the court. Mc- 
Coy V. McCoy, 105 Va. 829, 54 S. E. 
995. 

Effect of Election.— The election by 
a child not to bring an advancement 
of real property into hotchpot does not 
debar him from participating in the 
division of his father's personal estate 
where such advancement does not ex- 
ceed his share of the real estate. Mc- 
Coy V. McCoy, 105 Va. 829, 54 S. E. 
995. 

Child ^Cannot Be Required to Pay 
Back Part of Advancement to Estate. 
— While a child receiving an advance- 
ment from a parent may bring such 
advancement into hotchpot and share 
in the division or distribution of the 



78 



Advancements 



estate of the parent after his death, he 
can not be required to pay back to the 
estate any part of the advancement, 
and if it turns out that he has received, 
by way of advancement, an equal share 
with the others of the estate, or more 
than his share, he can only be excluded 
from participation in the division or 
distribution of the estate. McCoy v. 
McCoy, 105 Va. 829, 54 S. E. 995. 

Incomplete Advancement. — Where a 
father intends to give certain land to a 
child as an advancement, but neither 
gives the child a deed to the land nor 
puts him in possession, and afterwards 
sells the land and gives the child the 
proceeds, the advancement as incom- 
plete and the child is entitled, on the 
distribution of the father's estate, to a 
share of both the real and the personal 
estate, being charged lin the division of 
the real estate with the amount of the 
proceeds of the land. McCoy v. Mc- 
Coy, 105 Va. 829, 830, 54 S. E. 995. 

When Estate Can Be Brought into 
Hotchpot. — A descendant, who has re- 
ceived an advancement from a person 
dying intestate as to his estate or any 
]*art thereof, is not compelled to await 
the expiration of a year from the date 
of the order appointing the first per- 
sonal representative of such intestate, 
before instituting a suit in equity for 
the purpose of bringing the estate into j 
hotchpot under W. Va. Code, § 13, ch. 
78. Meyer v. Meyer, 60 W. Va. 473. 
56 S. E. 209. 

Right of Equity to Control Widow's 
Discretionary Power of Advancement 
— Where a husband by his will con- 
fers upon his widow the power "to 
make advances or give such aid to our 
children as circumstances may ' from 
time to time recjuire," and requires her 
to keep an account thereof "so that 
they shall enjoy as nearly as possible 
in equal degree the estate I may leave," 
the children have no right to demand 
that they be advanced the same 
amounts, but the widow is clothed with 
discretionary power as to the amount 
to be advanced to each, which a court 
of equity can not control or review in 



the absence of bad faith on her part, 
or abuse of the confidence reposed in 
her. The equality dntended by the 
will is in the final distribution. Trout 
z\ Pratt. 106 Va. 431, '56 S. E. 165. 

Where all of the hedrs have sever- 
ally received conveyances of land from 
the ancestor in his life time, each cove- 
nanting that the conveyance to him is 
in full of all that he is ever to have as 
beir. and the ancestor dies intestate 
leaving other land, no one of the heirs 
can cause the convejyances to be 
brought into hotchpot as advancements, 
but all must share equally in partition- 
ing the land of which the ancestor died 
seized. Pendry v, Cozort, 72 W. Va. 
100, 77 S. E. 546. 

Purchaser from Distributee. — Under 
the statute where the advancement to 
a descendant is equal to or exceeds his 
share in the estate, it bars his righ* to 
further participation; and, although the 
section does not refer to a purchaser 
from the descendant, yet such purchaser 
is charged with knowledge of the pub- 
lic statutes of the state, and only buys 
and can only take the interest of his 
grantor nn the estate. The doctrine of 
bona fide purchaser has no application. 
The purchaser only buys the heir's in- 
terest, and when that interest is ascer- 
tained he is entitled to that and to 
nothing more. Corbitt v, Wright, 120 
Va. -471, 91 S. E. 612. See post. DE- 
SCENT AND DISTRIBUTION. 

VIII. ADEMPTION OF LEGA- 

CIES, s 

See post, WILLS. 

When Advancement Deemed Satis- 
faction of Devise or Bequest. — Va. 
Code 1919, § 5237: Barnes W. Va. 
Code. p. 969, ch. 77, ? 11. 

IX. VALUATION OF ADVANCE- 

MENTS. 

A. HOW COMPUTED. 

An advancement is reckoned at its 
value at the time it was made. Payne 
V. Payne, 128 Va. 33, 104 S. E. 712. 

B. INTEREST. ^ 

See ante, "How Computed," IX, A. 



ADVERSE.— Adverse Title— Adverse Claim.— In State v. West Branch 
Lumber Co., 64 W. Va. 673, 695, 63 S. E. 372, the court, in discussing the opin- 
ion of Judge Snyder in Simpson v. Edmiston, 23 W. Va. 675, says: "He 
failed to distinguish between adverse titles and adverse claimants to the same 
title. The latter kind of adverseness would exist in the case of conflicting 
claimants to the same title under a deed by private persons, under a will, un- 
der a decree of a court, and under any other kind of an instrument. There 
was adverseness of claim, but it was indubitably a case of adverse claim to the 
same title." 



ADVERSE POSSESSION. 

VqI. Foundations of Title by Adverse Possession and Object of 
Statutes, 81. 

L What Constitutes Adverse Possession, si. 

n. Bequisitesy si. 

54A. In General, 81. 

J4A. Possession for Statutory Period, 82. 

1. Period of Limitation, 82. 

a. In Virginia, 82. 

b. In West Virginia, 82. 

2. When Statute Commences to Run, 82. 

3. Effect of Disability of Owner of Property, 82. 

4. Effect of Death of a Party, 83. 

5. Effect of Attornment of a Tenant in Possession, 82. 

A. Actual Possession, 83. 

1. In General, 83. 

B. What Constitutes Actual Possession, 83. 

J^a. In General, 83. 

b. Making Improvements on Land or Cultivating It, 85. 

c. Cutting Timber, Sod or Grass, 85. 
cj^. Grazing Cattle, 85. 

d^. Of Wild and Uncultivated Lands, 85. 
^V-i, Of Tide Lands. 86. 

d^. Of Underground Minerals, Oil or Gas, 87. 
e. Possession of Part Possession of Whole, 87, 

B. Notorious and Visible, 87. 

C. Exclusive, 87. 

D. Continuous, 88. 

H- In General, 88. 

1. Effect of Entry by True Owner, 89. 

2. Tacking Several Possessions Together, 8&. 

E. Hostile and under Claim of Right, 89. 

ni. Color of Title, 90. 

A. Defined, 90. 

B. Title Need Not Be Good and May Be Equitable, 92. 

1. Rule Stated, 92. 

2. Rule Illustrated, 92. 

BJ4. Cannot Be Used to Achieve Unjust or Fraudulent Results, 9?. 

79 



:80 Adverse Possession 



1. Rule Stated, 93 

2. Rule Illustrated, 93. 

By^. Sufficiency of Instrument as Color of Title, 94. 

C. Office, EflFect and Extent of Possession, 94. 

1. Office or Purpose, 94. 

2. Effect and Extent of Possession Essential under, 94. 

a. Rule Stated, 94. 

b. Rule Illustrated, 96. 

D. Effect of Grant of Portion of Land in Actual Possession, 96. 

mV^. Against Whom Possession Buns, ^• 

IV. Conflicting Grants— Interlocks, 98. 

A. In General, 98. 

B, C, D. Possession by Senior or Junior Patentee or Grantee or Their 
Privies, 98. 

V. Claimant's Possession Originally Consistent With True Own- 

ers Title, 100. 

A. In General, 100. 

B. Intent, 101. 

By2. Entry under Parol Gift, 102. 

C. Cotenants, 102. 

D. Between Mortgagor and Mortgagee, 102. 

E. Vendor and Purchaser, 102. 

1. In General, 102. 

2. Possession under Executory Contract of Sale, 102. 

a. In General, 102. 

b. Purchase Money Paid, 103. 

c. Disclaimer, 103. 

d. Effect of Subsequent Grant to Third Party, 103. 

2^. Possession under Deed or Contract of Sale Executed by a Co- 
tenant, 103. 

F. Trust Estates, 103. 

G. Between Life Tenant and Remainderman or Reversioner, 104. 
H. Landlord and Tenant, 104. 

I. Principal and Agent, 105. 

J. Easement — Possession by Owner of Servient Estate, 104. 

V14. Offer to Purchase Adverse Claim, 104. 

VI. Property Which May Be Held Adversely, 105. 

A. Real Property, 105. 

1. State and County Lands, 105. 

a. In General, 105. 

(1) In Virginia, 105. 

(2) In West Virginia, 105. 

b. Lands Forfeited for Nonentry and Nonpayment of Taxes, 106. 

c. Lands Granted by the State, 106. 

2. Public Highways and Streets, 106. 

3. Railroad Right of Way, 107. 

B. Easements, 107, 

5. Right ia a Cemetery Lot, 107. 

C. Personalty, 107. 



Adverse Possession 



81 



Vn. Effect of Adverse Possession, 107. 

A. In General, 107. 

1. Doctrine Stated, 107. 

2. Doctrine Illustrated, 108. 

B. As Presumption of Grant, 110. 

Vni. Evidence, no. 

B. Admissibility and Competency, 110. 

VmV^. Questions of Law and Fact, m. 
IX. How Lost, in. 
XI. Preservation of Right of Action, 112. 

CROSS REFERENCES. 

See the title ADVERSE POSSESSION, vol. 1, p. 199, and references there 
given. In addition, see ante, ADEQUATE REMEDY AT LAW; post, CON- 
FLICT OF LAWS; EQUITY; JOINT TENANTS AND TENANTS IN 
COMMON; PUBLIC LANDS; SPECIFIC PERFORMANCE. 



i/il. FOUNDATION OF TITLE BY 
ADVERSE POSSESSION AND 
OBJECT OF STATUTES. 

"The acquisition of title to land by 
adverse user is referable to and pre- 
dicted upon the statutes of limitations 
in force in the several states, which, 
provide that an uninterrupted occu- 
pancy of lands by a person who has in 
fact no title thereto, for a certain num- 
ber of years, shall operate to extinguish 
the title of the true owner thereto, and 
vest a right to the premises absolutely 
in the occupier. The object of these 
statutes is to quiet the titles to land, 
and prevent that confusion relative 
thereto which would necessarily exist 
if no period was limited within which 
an entry upon lands could be made; and 
they are believed to be of even more im- 
portance to the interest of society than 
those relating to personal actions. 2 
Wood on Limitations (4th ed.), § 254, 
page 1219." McClanahan v, Norfolk, 
etc., R. Co., 122 Va. 705, 714, 96 S. E. 
453. 

The statute of Virginia, § 2915 of 
the Code of 1887 (Code 1919, § 5805), 
and statutes of substantially the same 
tenor and effect in the other states, 
constitute the foundation for all title 
by adverse possession in this country. 
The ruling purpose and policy of these 
statutes, which must be looked to in 
-6 



determining their true meaning and 
effect, is to give stability to land titles. 
McQanahan v, Norfolk, etc., R. Co., 
222 Va. 705, 714, 96 S. E. 453. 

One of the objects of the statute of 
limitations is to settle disputed boun- 
daries, as well as disputed claims of 
ownership, regardless of what the true 
boundary or better right may turn out 
to be. Point Mountain Coal, etc., Co. 
V. Holly Lumber Co., 71 W. Va. 21, 
75 S. £. 197. 

I. WHAT CONSTITUTES AD- 
VERSE POSSESSION. 

Adverse possession "is a prescriptive 
title or right, presupposing a valid 
grant, and deriving its strength and 
virtue from the statute of limitations, 
barring the remedy." Camden v. West 
Branch Lumber Co., 59 W. Va. 148, 
157, 53 S. E. 409. Riffle v. Skinner, 67 
W. Va. 75, 80, 67 S. E. 1075. 

"By 'adverse possession* we mean a 
possession which presupposes a dis- 
seisin of the rightful occupant, and not 
a possession under or through the 
latter." McClanahan v, Norfolk, etc., 
R. Co., 122 Va. 705, 717, 96 S. E. 453. 

IL REQUISITIES. 

J4A. IN -GENERAL. 

Adverse possession must be actual, 
exclusive, open and notorious, accom- 
panied by a bona fide claim of title 



82 



Adverse Possession 



against all other persons, and must be 
continued for the period of the statu- 
tory bar. Yellow Poplar J-umber Co. 
V. Thompson, 108 Va. 612, 62 S. E. 358. 

y2\, POSSESSION FOR STATU- 
TORY PERIOD. 

1. Period of Limitation. 

a. In Virginia. 

Va. Code 1919, § 5805. 
Bill in Equity to Repeal Grant. — 
Va. Code 1919, § 5822. 

b. In West Virginia. 

Barnes Code, W. Va. p. 1044, ch. 
104, §§ 1, 5. 

In W^st Virginia suit for the pur- 
pose of cancelling a patent to an entry, 
man who, prior to the foundation of 
the state, had made entries and sur- 
veys of lands included within its 
boundaries, under the laws of the 
state of Virginia, must be brought 
within ten years from the date thereof, 
and this Statute of Limitation applies 
to a suit brought for that purpose by 
the State, as well as to one brought 
by an individual whose interests are 
involved. State v. Miller, 84 W. Va. 
175, 99 S. E. 447. 

ft. When Statute Commences to Run. 

Against Remainderman. — Possession 
under a claim of title for a period of 
fifteen years ripens into a perfect title 
as well against a life tenant as against 
others, and if such possessor also has 
title to the remainder in fee, the fee 
merges the lesser estate, and the 
statute of limitations against one 
claiming an interest as a remainderman 
begins to run from the time of the 
merger, and not from the death of the 
life tenant. McCauley v. Grim, 115 Va. 
610, 79 S. E. 1041. 

But a vendee in possession under a 
deed or contract of sale, executed 
jointly by a life tenant and the re- 
mainderman in fee and valid as to the 
former but void as to the latter, can 
not claim the benefit of the statute of 
limitations as against the remainder- 



man, until after the death of the life 
tenant, or no right of action accruer 
to the remainderman until the hap- 
pending of that event. Titchenell v. 
Titchenell, 74 W. Va. 237, 81 S. E. 978. 
Possession under a tax deed for the 
statutory period may give title as 
against the owner, but the statute be- 
gins to run only from the date of pos- 
session under the deed, and the power 
to issue the deed does not arise until 
after the expiration of the period al- 
lowed for redemption. Yellow Poplar 
Lumber Co. r. Thompson, 108 Va. 612, 
62 S. E. 358. See post TAXATION. 

3. E£fect of Disability of Owner of 
Property. 

Va. Code 1919, §§ 5807, 5808; Barnes 
Code, W. Va. p. 1044, ch. 104, §§ 3, 4. 

Effect of Coverture.— Title by ad- 
verse possession can not be maintained 
against a woman under coverture 
from the date of her marriage in 1867 
until the death of her husband in 19i:t. 
The adverse possession which was 
claimed not having begun before mar- 
riage, the statute did not run during 
that period. Nickels r. Miller, 126 Va. 
59, 101 S. E. -63. 

An action of ejectment, in the name 
of husband and wife, to recover the 
common law lands of the wife, must, 
if the husband be living at the time ot 
trial, be brought within the statutory 
period, without deduction, on account 
of the coverture of the wife; but if the 
husband be dead and the action sur- 
vives to the wife, the period of her 
covertue is deducted, provided the whole 
time elapsing from the time then right 
of action accrued until action brought 
does not exceed twenty years. Mc- 
Murray v. Dixon, 105 Va. 605, 54 S. 
E. 481. 

If a woman married and ownii\g 
land before April l, 1869, conveyed it 
by deed to which her husband was not 
a party, and her grantee went into 
possession, and lated she and her hus- 
band conveyed to another by a deed 
good as to the husband, but void as to 



Adverse Possession 



83 



the wife, no action accrued to her to 
recover the land from her grantee in 
her sole deed until her husband's death, 
and limitation did not run against her 
until her husband^s life estate ceased 
by his death, her right of entry not 
accruing until his death. Duffy v. Cur- 
rence, 66 W. Va. 252, 66 S. E. 755. 

Bill in Equity to Repeal Grant by 
Commonwealth. — Va. Code 1919, § 
5823. 

4. E£Fect of Death of a Party. 

Va. Code 1919, § 5809.- 

The amendment to section 2919, 
Code of 1887 (Acts 1887-88, p. 345), 
providing that "the period of one year 
from the qualification of a personal 
representative" shall be eccluded from 
the computation of time within which 
it might be necessary to commence 
any proceeding, and the amendment by 
Acts of 1895-96, p. 331, which substi- 
tuted "the period of one year from the 
death of any party" for "the period of 
one year from the quafification of a 
personal representative" (Code 1904, 
section 2919; Code 1919, § 5809), do not 
apply to real actions. Steffey v. King, 
126 Va. 120, 127, 101 S. E. 62. 

When the legislature by the act of 
1895-6, p. 331, Code of 1904, section 
2919, (Code 1919, § 5809) provided for 
the exclusion of "one year from the 
death of any party" in computing the 
time of running of the statute of 
limitations, it meant some party hav- 
ing a right and causo of action. This 
right must have existed or at least 
have been capable of coming into 
existence during the life of the party, 
therefore the statute, regardless of the 
question of its application to real ac- 
tions has no application to the instant 
case, where the life tenant's possession 
was not questioned and could not have 
been questioned so long as she lived. 
Therefore, when the remainderman 
under the void remainder took pos- 
session the statute began to run from 
the time of such taking of possession 
and not from one year after the death 



of the life tenant. Steffey v. King, 126 
Va. 120, 101 S. E. 62. 

5. Effect of Attornment of a Tenant in 
Possession. 

Attornment by a tenant in pos- 
session, with knowledge of his lessor 
who takes no steps to regain posses- 
sion, is sufficient to break the con- 
tinuity of possession and stop the run- 
ning of the statute. Custer r. Hall, 71 
W. Va. 119, 128, 76 S. E. 183. 

A. ACTUAL POSSESSION. 

1. In General. 

Possession must be actual. Wade v, 
McDougle, 59 W. Va. 113, 129, 52 S. 
E. 1026; Wilson v. Braden, 56 W. Va. 
372, 373, 49 S. E. 409; Yellow Poplar 
Lumber Co. r. Thompson, 108 Va. 612, 
62 S. E. 358. 

Constructive possession of land does 
not apply in favor of a claimant 
thereof, against the true owner, unless 
such claimant has had actual adverse 
possession of some part of the contro- 
verted land. Chilton v. White, 72 W. 
Va. 545, 78 S. E. 1048. 

A deed for land, though executed 
in due form by one not having au- 
thority to do so, is not in itself suf- 
ficient to work an ouster in the ab- 
sence of notice to the true owner ol 
the adverse claim and possession. 
Guthrie r. Beury, 82 W. Va. 443, 96 S. 
E. 514. See also Camden v. West 
Branch Lumber Co., 59 W. Va. 148, 
160,' 53 S. E. 409. 

2. What Constitutes Actual Possession. 

^^a, In General. 

A grant from the commonwealth 
puts the patentee of the land con- 
structively into possession thereof, and 
j there can be no ouster of that posses- 
sion except by actual adversary pos- 
session — some act or acts palpable to 
the senses which serve to admon- 
ish the patentee that his seisin is 
molested. Richmond v. Jones, 111 Va. 
214, 68 S. E. 181, citing Green v. Pen- 
nington, 105 Va. 801, 54 S. E. 877. 



84 



Adverse Possession 



"To work a disseizin or ouster, it is 
not enough to set up a mere claim by 
obtaining a deed or patent or other- 
wise. It requires an adverse holding, 
actual occupation of the land, and such 
as is calculated to give notice.'* Cam- 
den V. West Branch Lumber Co., 59 
W. Va. 148, 160, 53 S. E. 409. 

To sustain the defense of adverse 
possession the defendants, or those un^ 
der whom they claim, must have en- 
tered upon the land in controversy and 
taken possession thereof by residence, 
improvement, cultivation^ or other 
open, notorious, and habitual act of 
ownership. The acts of paying taxes, 
asserting title and forbidding trespass- 
ers, do not aid the claimant to adverse 
possession. The primary fact of actual 
possession must first be established. 
When this is done, proof of such ad- 
ditional acts is admissible, not as show- 
ing the possession itself, but as show- 
ing its good faith, exclusiveness, no- 
toriousness and hostility. Craig-Gileb 
Iron Co. V. Wickline, 126 Va. 223, 101 
S. E. 225. 

Actual inclosure by fence is not in- 
dispensable for adverse possession un- 
der the statute of limitations. It is suf- 
ficient if the possession be marked or 
held by inclosure by fence, by cultiva- 
tion, residence, clearing, or any plainly 
visible and notorious manifestation ot 
sole, exclusive possession, according to 
the nature of the case. Wade v. Mc- 
Dougle, 59 W. Va. 113, 114, 52 St E. 
1026. 

The other requisites of the law of 
title by adverse possession under a 
claim of title only having been com- 
plied! with, actual physical enclosure 
of the land by fence is not necessary, 
if the claimant has shown his occu- 
pancy and claim of title and the limits 
thereof in some other reasonably cer- 
tain way, as by clearing and cultiva- 
tion, or cultivation without clearing, 
or by some recognized mode of im- 
provement. Lyons v. Fairmont Real 
Estate Co., 71 W. Va. 754, 77 S. E. 



525, explaining Card v. Fanpel, 24 W. 
Va. 238. 

It is not necessary in order to the 
acquirement of a right in a burial lot 
by adverse possession that the same 
be fenced. If the limits of such claim 
are clearly defined by improvements 
upon the lot and by a slight barrier or 
ridge extending all the way around the 
same, and so maintained for the period 
of 10 years, clearly indicating the ex- 
tent and nature of the claim, it will be 
sufficient to confer the right by ad- 
verse possession. Sherrard v. Henry 
(W. Va.), 106 S. E. 705. 

"The proof of absence of occupancy 
and improvement by fencing, cultiva- 
tion or otherwise, however good or 
sufficient the reason for not building, 
or not fencing, or not clearing or per- 
forming any other act of ownership 
may be, can not prove or tend to 
prove a claim by adversary possession. 
If it were otherwise, it is conceivable 
that lands remaining in a state of 
nature might be recovered by advcr* 
sary possession, or the possession 
might be retained against the older 
patentee by proving, item by item, and 
circumstance by circumstance, a 
plausible excuse to the jury for the 
failure to do or perform this or that 
act essential to adversary possession." 
Richmond v. Jones, 111 Va. 214, 217, 
68 S. E. 181. 

The character of the acts necessary 
to give to the party the seisin required 
must, of course, vary with the situation 
of the land and the condition of the 
country. In a settled and cultivated 
region an actual occupancy and per- 
nancy of the profits may be requisite; 
whilst in the wilderness a possession 
less definite might suffice, if it ap- 
peared that the property was not sus- 
ceptible of a stricter occupation; but 
it must always be an actual, visible, 
notorious, and continued possession. 
Craig-Giles Iron Co. v, Wickline, 126 
Va. 223, 101 S. E. 225. See post, "Of 
Wild and Uncultivated Lands," II, 



Adverse Possession 



85 



A, 2, dJ4; "Notorious and Visible/' II, 
B; "Continuous," II, D. 

One who lives in a dwelling house 
on an enclosed tract of land, and has 
and uses outbuildings, fruit trees and 
a garden thereon, cultivates a part 
thereof, and grazes the whole, and 
whose dominion over the land is no- 
torious and is recognized and respected 
by all the countryside, had adverse 
possession of the whole tract. Roller 
r. Armentrout, 118 Va. 173, 86 S. E. 
906. 

b. Making Improvements on Land or 

Cultivating It. 

"All the authorities agree that acts 

done upon land, requisite to constitute 

adverse possession, must be such as to 

indicate and serve as notice of an in- 

• tention to appropriate the land itself, 

and not the mere products of it, to 

the dominion and ownership of the 

party entering, being acts of permanent 

improvement." Whealton v. Doughty, 

112 Va. 649, 656, 72 S. E. 112. 

It is not necessary that cultivation 
or improvement extend to the line 
claimed at every point, if the acts 
manifest unequivocal intent to claim up 
to the line. Lyons v, Fairmont Real 
Estate Co., 71 W. Va. 754, 77 S. E. 525. 

c. Cutting Timber, Sod or Grass. 

Mere occasional cutting timber or 
sod on land does not constitute ad- 
verse possession under the statute of 
limitations. Wade v. McDougle, 59 
W. Va. 113, 52 S. E. 10^. 

"In 1 Cyc, p. 990, it is said, that al- 
though there are some decisions ap- 
parently to the contrary, the weight of 
authority sustains the rule that the 
roere occasional cutting of timber on 
land is not alone such evidence ot 
ownership as to amount to a posses- 
sion adverse to the true owner, and 
the additional circumstances that the 
claimant ♦ ♦ * pastured his hogs or 
cattle there occasionally, or did other 
similar acts, will not constitute actual 
possession; and on p. 992, it is said 



that the occasional or periodical entry 
upon latid to cut wild grass is not an 
act manifesting a purpose to take pos- 
session as owner, and does not con- 
stitute actual possession." Whealton 
V. Doughty, 112 Va. 649, 656, 72 S. 
E. 112. See post, "Grazing Cattle," II, 
j A, 2, 0/2, 

' c^. Grazing Cattle. 

I 

I Mere occasional grazing cattle on 
land does not constitute adverse pos- 
session under the statute of limitations. 
Wade V. McDougle, 59 W. Va. 113, 11*, 
52 S. E. 1026. See also, Whealton z/. 
Doughty, 112 Va. 649, 656, 72 S. E. 
112. 

d^. Of Wild and Uncultivated Lands. 

" 'There can be no adverse posses- 
sion of wild lands as against the su- 
perior title unless such possession is 
actual.** Wilson v. Braden, 56 W. Va.' 
372, 49 S. E. 409." Chilton v. White, 72 
W. Va. 545, 549, 78 S. E. 104«. 

The mere possession of wild and 
uninclosed land is not and does not 
become adverse to the owner of the 
superior title unless and until the pos- 
session is evidenced by such actual, 
exclusive, visible, and notorious oc- 
cupation, use and dominion over the 
land, or by such visible change in its 
character as amount In law to a com- 
plete ouster of the superior claimant. 
Guthrie v. Beury, 82 W. Va. 443, 96 S. 
E. 514. See also, Wilson v, Braden, 56 
W. Va. 372, 373, 49 S. E. 409. And 
see post, ''Notorious and Visible/' II, 
B; "Exclusive," II, C. 

Such actual possession depends on 
the acts of the junior claimant of the 
land rather than upon the things left 
undone by the senior claimant, and 
must effect such change in the con- 
dition, as from a wild to an inclosed 
or cultivated state, and be so con- 
tinuous and visible as would entitle the 
superior claimant to proceed against 
the inferior claimant as a trespasser at 
any time within the statutory limitation 



86 



Adverse Possession 



period. Guthrie v. Beury, 82 W. Va. 
443, 96 S. E. 514. 

While lands remain luncleared, or in 
a state of nature, they are not suscep- 
tible of adverse possession against the 
older patentee, unless by acts of owner- 
ship eflfecting a change in their condi- 
tion, and to constitute adverse posses- 
sion there must be occupancy, culti- 
vation, improvement or other open, 
notorious and habitual acts of owner- 
ship. Richmond v. Jones, 111 Va, 
214, 217, 68 S. E. 181. 

Wild and uncultivated lands can not 
be made the subjects of adversary pos- 
session, while they remain completely 
in a state of nature. A change in theit 
condition, to some extent, is therefore 
essential; and the acts by which it is 
effected are often the strongest evi- 
dence of actual possession. Without 
■such change, accomplished or in pro- 
gress, there can be no residence, cul- 
tivation, or improvement; no occupa- 
tion, use, or enjoyment. Evidence 
short of this may prove an adversary 
claim, but, in the nature of things, 
can not establish an adversary pos- 
.«ession. Nor is there any reason for 
relaxing the rules of law on this sub- 
ject, in behalf of the adversary claim- 
ant of such property. There ought 

• 

to be no presuniption in his favor 
against the better title. It is vain for 
him to say that he has had all the 
possession of which the property was 
then susceptible; for that would lead 
to a constructive possession, which is 
only attributable to the rightful owner. 
Craig-Giles Iron Co. v. Wickline, 126 
Va. 223. 101 S. E. 225; Richmond v. 
Jones, 111 Va. 214, 216, 68 S. E. 181; 
Whealton v. Doughty, 112 Va. 649, 
656, 72 S. E. 112. 

The m«re cutting and sal« of timber 
at widely separated intervals upon 
mountain land in a state of nature by 
the holders of a junior grant does not 
operate as a disseisin and ouster of the 
owners under a senior grant, where 
what was done effected no substantial 



change in the condition of the prop- 
erty. Craig-Giles Iron Co. v, Wick- 
line, 126 Va. 223, 101 S. E. 225. 

Occasional cutting of timber on, and 
ranging cattle over, wild and unen- 
closed land, is not such occupation of 
it as will amount to adverse posses- 
sion. Possession must be such as 
amounts to constructive notice of the 
adverse claim, and such as would give 
the true owner a right to sue for tres- 
pass. -Chilton r. White, 72 W. Va. 545. 
549, 78 S. E. 1048. 

A mere claim to possession ac* 
companied by the occasional cutting 
of timber, the prevention of trespasses, 
the payment of taxes and the assertion 
of title is not sufficient, but it must be 
such occupation, use or holding of the 
property or change in its character, 
as will make such claimant during such 
statutory period continuously subject 
to be treated as a trespasser by the 
holder of the superior title construc- 
tively or actually in possession of such 
land. Such claim of possession does 
not amount to an ouster of the superior 
claimant. Wilson v. Braden, 56 W. 
Va. 372, 373, 49 S. E. 409. See post, 
"Notorious and Visible," II, B; "Ex- 
clusive," II, C. 

di/4. Of Tide Lands. 

It is doubtful if title by adverse pos- 
session can be acquired of land over 
which the tide ebbs and flows, separate 
and distinct from the rights of the 
riparian owner. In the case of wild 
land, it is held that, in order to acquire 
title by adverse possession, there must 
be some change in their physical con- 
dition as a visible evidence of occupa- 
tion and ownership, and it would seem 
that the same rule should apply to 
land under water, subject to the ebb 
and flow of the tide. Austin v. Minor, 
107 Va. 101, 102, 57 S. E. 609. See ante. 
"Of WMld and Uncultivated Lands," II, 
A. 2. d54. 

If title by adverse possession can be 
acquired of marsh lands on the sea- 



Adverse Possession 



87 



shore, separate and distinct from the 
rights of the riparian owner, the mere 
fact that the adverse claimant and his 
predecessors in title permitted their 
cattle to roam over said marshes when 
not covered by water, just as they 
roamed over adjacent marsh lands, and 
that they cut grass from the marsh 
lands and hauled it away for use as 
manure on their highlands, does not 
constitute such actual possession as» 
will deprive the true owner of his title. 
Whealton v. Doughty, 112 Va. 649, 72 
S. E. 112, 

dfj. Of Underground Minerals, Oil or 
Gas. 

The title to the surface of land and 
to the underlying minerals may be 
vested in differeiit persons, but aftet 
severance, the title to neither can be 
acquired by adverse possession of the 
other. Morison v. American Ass*n, 110 
Va. 91, 65 S. E. 469; Interstate Coal, 
etc., Co. V. Clintwood Coal, etc., Co., 
105 Va. 574. 54 S. E. 593. 

"It is a general presumption that one 
who has the possession of the surface 
of the land has possession of the sub- 
soil also. But when, by conveyance or 
reservation, a separation has been made 
of the ownership of the surface of the 
land from that of the underground 
minerals, the owner of the former can 
acquire no title to the latter by his ex- 
clusive and continued enjoyment of the 
surface; nor 4oes the owner of the 
minerals lose his right or his posses- 
sion by any length of nonusage. He 
must be disseized to lose his right, and 
there can be no disseizin by an act 
which does not actually take the min- 
erals out of his possession." Wallace 
V- Elm Grove Coal Co., 58 W. Va. 449, 
«3, 52 S, E. 485. See also Interstate 
Coal, etc., Co. v. Clintwood Coal, etc., 
Co., 105 Va. 574, 54 S. ET. 593. 

The statute of limitations, for want of 
adverse actual possession, does not ap- 
ply in favor of one claiming coal in 
state of nature in place, not developed. 



Newman v. Newman, 60 W. Va. 371, 
55 S. E. 377. 

Actual possession in drilling and pro- 
ducing oil and gas by a lessee of land 
under the usual lease for production 
of oil and gas, is actual possession of 
the land by the lessor for adversary 
possession. Lloyd v. Mills, 68 W. Va. 
241, 69 S. E. 1094. 

e. Possession of Part Possession of 
Whole. 

See post, "Office, Effect and Extent 
of Possession," III, C. 

B. NOTORIOUS AND VISIBLE. 

In order to get good title to land by 
adverse possession, the possession must 
be open and notorious. Austin v. 
Minor, 107 Va. 101, 57 S. E. 609; Wil- 
son V. Braden, 56 W. Va. 372, 49 S. E. 
409; Wade r, McDougle, 59 W. Va. 
113, 52 S. E. 1026; Yellow Poplar Lum- 
ber Co. r. Thompson, 108 Va. 612, 6!fe 
S. E. 358;- Craig- Giles Iron v. Wick- 
line, 126 Va. 223, 101 S. E. 225. 

Possession must be so notorious, ex- 
clusive and hostile as to give notice to 
the owner or put him upon inquiry as 
to the right under or by which such 
dominion is exercised. Guthrie v. 
•Beury, 82 W. Va. 443, 449, 96 S. E. 
514. See post, "Exclusive," II, C; 
"Hostile and under Claim of Right," 
II. E. 

There can be no adverse possession 
of wild lands as against a superior 
title unless such possession is visible 
and notorious. Wilson zr. Braden, 56 
W. Va. 372, 373, 49 S. E. 409; Chilton 
V, White, 72 W. Va. 545, 549, 78 S. E. 
1048. 

C. EXCLUSIVE. 

To acquire good title by adverse 
possession, the possession must be ex- 
clusive. Austin V, Minor, 107 Va. 101, 
57 S. E. 609; Wilson v, Braden, 56 W. 
Va. 372, 49 S. E. 409; Wade v. Mc- 
Dougle, 59 W. Va. 113, 129, 52 S. E. 
1026; Gardner v, Montague, 108 Va. 
192, 60 S. E. 870; Yellow Poplar 



88 



Adverse Possession 



Lumber Co. v. Thompson, 108 Va. 
612, 62 S. E. 358; Cumbee v. Ritter, 
123 Va. 448, 96 S. E. 747; Providence 
Forge Fishing, etc., Club v. Miller, 
Mfg. Co., 117 Va. 129, 83 S. E. 1047. 

And this rule applies to the ac- 
quisition by adverse possession of 
wild lands. Wilson v. Braden, 56 W. 
Va. 372, 373, 49 S. E. 409; Chilton v. 
White, 72 W. Va. 545, 549, 78 S. E. 
1048. 

The possession must be so notorious, 
exclusive and hostile as to give notice 
to the owner or put him upon inquiry 
as to the right under or by which such 
dominion is exercised. Guthrie v. 
Beury, 82 W. Va. 443, 449, 96 S. E. 
514. 

"To make the possession open and 
exclusive within the meaning of the 
law of title by adverse possession, 
nothing is required beyond acts clearly 
indicating a claim of ownership of the 
property and the extent of. the claim. 
The occupancy need not be such as 
physically to bar out trespassers, but 
only to manifest unequivocally a claim 
of ownership on the part of the occupant 
and preclude all others, not merely 
from trespassing upon it, but from us- 
ing it as their own or in common with 
the claimant. Obviously, this may be 
done in more than one way and what 
acts are sufficient depends upon the 
condition of the land and its adaptabil- 
ity to use." Lyons v. Fairmont Real 
Estate Co., 71 W. Va. 754, 770, 77 S. 
E. 525. 

Fishing and hunting on a pond, rent- 
ing boats to others to fish and hunt 
thereon and instructing one's agent not 
to permit others to boat or fish on the 
pond without the principal's permis- 
sion, are not such acts of adverse pos- 
session as will confer title as against 
an adjacent owner who used the pond 
for boating and fishing whenever he 
desired to do so. Providence Forge 
Fishing, etc., Club v. Miller Mfg. Co., 
117 Va. 129, 83 S. E. 1047. 

In a suit to remove a cloud on title 



it appeared that the property was valu- 
able only for hunting, fishing and trap- 
ping, and that a great many people 
hunted, fished and trapped thereon. 
The persons under whom complainant 
claimed used and enjoyed it in these 
respects far more than any one else, 
but it was also hunted over, used, and 
enjoyed by defendant and others. Held, 
insufficient to show such use and occu- 
pation of the premises by any one as 
was necessary to constitute adverse 
possession. Austin v. Minor, 107 Va. 
101, 57 S. E. 609. 

D. CONTINUOUS. 

%, In General. 

To acquire good title by adverse 
possession the possession must be 
continuous. Austin if. Minor, 107 Va. 
101, 57 S. E. 609; Wade v, McDougle, 
59 W. Va. 113, 129, 52 S. E. 1026; Wil- 
son V, Braden, 56 W. Va. 372, 49 S. E. 
409; Mitchell v. Carder, 21 W. Va. 277. 

"The moment the premises become 
vacant, that moment the owner, by 
reason of his legal title will be re- 
garded in the constructive possession 
and adverse possession of the wrong 
doer is at an end." Wilson v, Braden, 
56 W. Va. 372, 378, 49 S. E. 409. 

"Continuity of possession is one of 
the essential requisites to constitute 
such adverse possession as will be of 
efficacy under the statute of limitations. 
Whenever a party quits the possession, 
the seisin of the true owner is restored, 
and a subsequent wrongful entry by 
another constitutes a new disseisin, and 
it is equally well settled that if the 
continuity of possession is broken be- 
fore the expiration of the period of 
time prescribed by the statute of limi- 
tations, an entry within that time de- 
stroys the efficacy of all prior posses- 
sion, so that to gain a title under the 
statute a new adverse possession for 
the time limited must be taken for that 
purpose." Merryman v. Hoover, 107 
Va. 485, 503, 59 S. E. 483. 

For possession to be continuous it 



Adverse Possession 



89 



must be such as will permit the su- 
perior claimant to sue the adverse 
holder as a trespasser at any time dur- 
ing the period of limitation. Unless 
he makes out a prima facie case of 
such unbroken, continuous posses- 
sion, on demurrer to evidence, the 
judgment should be against him. Wil- 
son V. Braden, 56 W. Va. 372, 373, 49 
S. E. 409. 

"If the land is of a character to ad- 
mit permanent useful improvement, 
the possession must be kept up during 
the whole statutory period by actual 
residence or by continued cultivation 
or enclosure.*' Wilson v. Braden, Sfi- 
W. Va. 372, 378, 49 S. E. 409. 

In Wilson v, Braden, 56 W. Va. 372, 
378, 49 S. E. 409, the court said: "The 
plaintiff when he purchased found the 
premises entirely vacant, and for more 
than five years thereafter he never 
found any one in possession of the 
premises whom he could treat as a 
trespasser. Even prior to that time 
the possession is not shown to be con- 
tinuous. The defendant did not have it 
enclosed, did not live on it, did not 
cultivate it except occasionally cropped 
a portion of it, and cut some timber 
off of it. His occupancy thereof in any 
manner was intermittent. No time 
after the plaintiff purchased had he 
noticed by the defendant's actual occu- 
pancy thereof in such manner that he 
could have brought suit against him as 
a trespasser until just before this suit 
was brought. The defendant has 
wholly failed to show such continuous 
possession of the land that the law re- 



quires.' 

1. Effect of Entry by True Owner. 

Upon entry by the true owner be- 
fore the statutory period, the premises 
revest in him. Wilson v. Braden, 56 W. 
Va. 372, 378, 49 S. E. 409. 

^ Tacking Several Possessions To- 
gether. 
In fixing the duration of adverse 
possession, a party has the right to tack 



to his possession the possession of those 
imder whom he claims. Christian v, 
Bulbeck, 120 Va. 74, 90 S. E. 661. 

But "where there are several adverse 
possessions, they can not be tacked to- 
gether so as to effect a bar or ouster 
of the title of the owner, unless the 
several occupants claim in privity, and 
there was no break in the succession of 
the one to the other. The possessory 
; estates must be connected and con- 
tinuous." Wilson V. Braden, 56 W, 
Va. 372, 378, 49 S. E. 409. 

Possession of Trees Can Not Be 
Tacked to Possession of Surface of 
Land. — Where there has been a sever- 
ance of title of the surface of land, and 
of the trees growing thereon, if it be 
conceded that there was such adverse 
possession of the trees as would ripen 
into title if held for the statutory 
period, still the possession of the trees 
after the severance of title as afore- 
said can not be added to the possession 
of the owner of the surface, and those 
under whom he claims, so as to com- 
plete the period of the statutory bar to 
a recovery of the true owner thereof. 
Yellow Poplar Lumber Co. v, Thomp- 
son, 108 Va. 612, 613, 62 S. E. 358. 

E. HOSTILE AND UNDER CLAIM 
OF RIGHT. 

See post, "Claimants Possession- 
Originally Consistent with True Own- 
er's Title," V. 

The occupancy which is necessary 
to support a claim of title by adverse 
possession must be hostile. Cumbee v. 
Ritter, 123 Va. 448, 96 S. E. 747; Pro- 
vidence Forge Fishing, etc.. Club v. 
Miller Mfg. Co., 117 Va. 129, 83 S. E. 
10*7. 

The statute of limitations demands 
ten years of hostile possession, with 
claim of title. Wade v. McDougle, 59" 
W. Va. 113, 129, 52 S. E. 1026. 

A mere naked possession, without 
claim of right, no matter how long, 
never ripens into a good title, but is- 
regarded as being held for the benefit 



90 



Adverse Possession 



of the true owner. Yellow Poplar 
Lumber Co. v, Thompson, 108 Va. 612, 
62 S. E. 358; Custer v. Hall, 71 W. 
Va. 119, 120, 76 S. E. 183. 

"The books say that when posseb^ 
sion is taken there must be then in- 
tent to claim adversely." Clark v. 
Beard, 69 W. Va. 313, 315, 71 S. E. 188, 
citing Hudson v. Putney, 14 W. Va. 
561. 

In an action of ejectment the jury 
were properly instructed that to con- 
stitute an adverse possession of land, 
•entry and possession under claim of 
right or title is required, and posses- 
sion for any length of time of the 
land in the declaration mentioned by 
the defendant and those under whom 
he claims constitutes no title to the 
said land and is no bar to the plain- 
tiff's right of entry upon said land 
where such claim of right or title do 
not exist. Gardner v. Montague, 108 
Va. 192, 60 S. E. S70. 

Adverse possession of land sufficient 
to constitute title is not established by 
proof that the possession was open, 
uninterrupted and notorious. It may 
have been all of these and yet not hos- 
tile. Gardner v. Montague, 108 Va. 
192, 60 S. E. 870. 

Possession must be so notorious, ex- 
clusive and hostile as to give notice to 
the owner or put him upon inquiry as 
to the right under or by which such 
dominion is exercised. Guthrie v. 
Beury, 82 W. Va. 443, 449, 96 S. E. 514. 
See ante, "Notorious and Visible," II, 
B: "Exclusive," II, C. 

One who enters upon land with the 
verbal permission of the owner and 
makes improvements thereon, but 
without deed or other paper title, does 
not hold adversely to such owner in the 
absence of a clear, positive and con- 
tinued disclaimer of the owner's title 
l)rought home to his knowledge. One 
who admits the title of another in or- 
der to acquire possession can not deny 
-that title in order to retain it. Thomp- 



son V, Camper, 106 Va. 315, 53 S. E. 
674. 

To constitute adverse possession 
there must be what is considered in 
law an ouster, an intention to oust and 
deprive the true owner, evidenced by 
acts importing only hostility, acts un- 
der circumstances importing hostility. 
And such acts and intent to claim ad- 
versely must be brought home to the 
knowledge and notice of the owner. 
Clark V. Beard, 69 W. Va. 313, 315, 71 
S. E. 188. 

Mistake. — Where a person occupies 
and possesses the land of another 
through a misapprehension or mistake 
as to the boundaries of his land, with 
no intention to claim as his own that 
which does not belong to him, but only 
intending to claim to the true line, 
wherever that may be , he does not 
hold adversely, and the reason why this 
is so is because in this state intention 
to hold adversely is an indispensable 
requisite to adverse possession, and 
such intention is then wanting. Schau- 
buch V, Dillemuth, 108 Va. 86, 60 S. E. 
745; Clinchfield Coal Co. v. Viers, ill 
Va. 261, 264, 68 S. E. 976. See also, 
Oneal v. Stimson, 61 W. Va. 551, 558, 
56 S. E. 889. 

Possession taken by mistake, and 
not under a claim of right, can not 
ripen into adverse possession, and 
hence in this case the bill was rightly 
dismissed. Davis v. Owen, 107 Va. 
283, 58 S. E. 5&1. 

III. COLOR OF TITLE. 

A. DEFINED. 

As the doctrine of color of title 
is technical and peculiar to the com- 
mon law, its definition is to be found 
there and not elsewhere. That is the 
source from which it was imported 
into the constitution and the statute. 
To ascertain what it means, we must 
resort to its origin and repository. 
State V. King, 77 W. Va. 37, 47, 87 S. 
E. 170. 

The doctrine of "color of title" is not 



Adverse Possession 



91 



literally a part of the statute of limita- 
tions. It is really a judicial addition 
to its terms by construction, in obe- 
dience to its spirit and purpose, or an 
implied legislative adoption of a ju- 
dicial fiction devised for beneficent 
purposes. State v. King, 77 W. Va. 
S7 S. E. 170. 

The phrase, "color of title," is used 
in § 3 of Art. XIII of the Constitu- 
tion of this state and § 40 of ch. 31, 
Code, ser. § 1099, in the sense in which 
it is used in the judicial administra- 
tion of the statute of limitations and 
other judicial proceedings. State v. 
King. 77 W. Va. 37, 87 S. E. 170. 

Color of title, for the purposes of 
the statute of limitations as to land, is 
that which has the semblance or ap- 
pearance of title, legal or equitable, 
but which in fact is not title. Point 
Mountain Coal, etc., Co. v. Holly 
Lumber Co., 71 W. Va. 21, 75 S. E. 197 ; 
Knight V. Grim, 110 Va. 400, 404, 66 
S. E. 42. See also, Ritz v. Ritz, 64 W. 
\'a. 107, 60 S. E. 1095; Lewis v. Yates, 
62 W. Va. 575, 598, 59 S. E. 1073. 

"Color of title is not. in law, title 
at all. It is a void paper having the 
semblance of a muniment of title, to 
which, for certain purposes, the law 
attributes certain qualities of title." 
State V. King, 77 W. Va. 37. 41, 87 S. 
E. 170. 

"Color of title is anything in writing 
purporting to convey title to the land 
which defines the extent of the claim, 
it being immaterial how defective or 
imperfect the writing may be, so that 
it is a sign, semblance or color of 
title." Stover v. Stover, 60 W. Va. 
285, 293. 54 S. E. 350. See post, "Title 
Need Not Be Good and May Be Equit- 
able." III. B. 

To serve as color of title a deed or 
paper should be one purporting to give 
ripht or title to the claimant or some 
one under whom he claims. Waldron 
r. Ritter Lumber Co., 80 W. Va. 792, 
79S, 94 S. E. 393, citing Swann v. 
Thayer. 36 W. Va. 46, 14 S. E. 423; 



Swann v. Young, 36 W. Va. 57, 14 S. 
E. 426. 

Therefore a deed or other title paper 
to which one is not a party, and under 
which he does not claim, but who 
claims adversely to it, though made by 
a tenant occupying some portion of 
the land under a lease from him, will 
not as against third persons claiming 
adversely operate to give him title by 
adverse possession to land not covered 
by his title papers or actually occupied. 
Waldron v. Ritter Lumber Co., 80 W. 
Va. 792, 94 S. E. 393. See post, "Of- 
fice, Effect and Extent of Possession," 
III, C. 

A contract of partition in writing 
under seal partitioning land between 
the parties thereto describing and de- 
fining the boundaries of the land to be 
held by each in severalty, mutually 
binding themselves to each other in a 
specified sum that if any of them should 
lose any of the land so held and im- 
proved by him that the others should 
make it good, where each of the parties 
enters into possession of the portion 
so set apart to him and continues in 
open, notorious and adverse possession 
thereof, such contract with such pos- 
session is "color of title." Stover v. 
Stover, 60 W. Va. 285, 54 S. E. 350. 

No Color of Title Shown.— The de- 
fendants could not claim any color of 
title, as they either had an absolutely 
and decisively good paper title or no 
paper title at all. The title which they 
derived from their predecessor in title, 
the grantor, either did or did not cover 
the land in controversy. If it did, no 
question of color of title or adverse 
possession arises or can arise; if it did 
not, they are solely dependent upon 
their defense of adverse possession, they 
are wholly without color of title under 
the grantor, and, having shown none 
from any other source, they are 
limited under that defense to their ac- 
tual possession of the minerals. Blacks- 
burg Min., etc., Co. v. Bell, 125 Va. 
565, 100 S. E. 806. See ante, "Actual 



92 



Adverse Possession 



Possession," II, A; post, "Office, Ef- 
fect and Extent of Possession," III, C. 
The term "claimant under color of 
title," in Const., art. 13 (Code 1906, p. 
Ixxxiv), relating to the transfer of titl\j 
of land forfeited to the state, is the 
status of one who relies on the doctrine 
of adverse possession, however defec- 
tive his color of title may be, so long 
as his claim is not predicated on fraud 
or breach of trust. State v. West 
Branch Lumber Co., 64 W. Va. 673, 63 
S. E. 372. 

B. TITLE NEED NOT BE GOOD 
AND MAY BE EQUITABLE. 

1. Rule Stated. 

It is inherent in color of title that 
the title claimed thereunder is invalid 
— is in fact no title — and the writing 
may indeed be absolutely void; but 
if the other requisites of the statute 
of limitation are complied with by the 
disseisor, it will constitute color of 
title. Baber v. Baber, 121 Va. 740, 94 
S. E. 209; Blacksburg Min., etc., Co. v. 
Bell, 125 Va. 565, 100 S. E. 806; Lloyd 
r. Mills, 68 W. Va. 241, 246, 69 S. E. 
1094. See also Interstate Coal, etc., 
Co. V. Clintwood Coal, etc., Co., 105 
Va. 574, 581, 54 S. E. 593. And see 
ante, "Defined," III, A. 

It is well settled in this state that 
a deed which purports to convey title, 
however defective, gives color of title, 
and when accompanied by adverse pos- 
session thereunder for the statutory 
period of ten years will ripen into a 
good title. Ritz v. Ritz, 64 W. Va. 
107, 60 S. E. 1095, citing Swann v, 
Thayer, 36 W. Va. 46, 14 S. E. 423; 
Randolph v. Casey, 43 W. Va. 289, 27 
S. E. 231; Russell v. Tennant, 63 W. 
Va. 623, 60 S. E. 609; Calvert v. Mur- 
phy, 73 W. Va. 731, 733, 81 S. E. 403, 
citing Core v. Fanpel, 24 W. Va. 238, 
242; Deep water R. Co. v. Honaker, 66 
W. Va. 136, 137, 66 S. E. 104. 

"This rule is applicable, so far as it 
effects her separate estate, though the 
grantor be a married woman." Deep- 



water R. Co. V. Honaker, 66 W. Va. 
136, 147, 66 S. E. 104. 

The title to which the writing gives 
the color, or semblance of title, may 
be an equitable as well as a legal title. 
Baber v. Baber, 121 Va. 740, 94 S. E. 
209; Interstate Coal, etc., Co. v, Clint- 
wood Coal, etc., Co., 105 Va. 574, 581, 
54 S. E. 693. 

2. Rule Illustrated 

A deed, void for defect apparent 
upon its face, constitutes color of title, 
open, notorious, exclusive and hostile 
possession under which, for a period 
of ten years, gives title under the stat- 
ute of limitations. Russell v. Tennant, 
63 W. Va. 623, 60 S. E. 609. 

An invalid tax deed, which purports 
to convey .land^ and sufficiently dd- 
scribes it to render identification pos- 
sible, gives color of title to the land 
granted. Yellow Poplar Lumber Co. 
V. Thompson, 108 Va. 612, 62 S. E. 
358; Jarrett v. Osborne, 84 W. Va. 559, 
101 S. E. 162, 166, citing State v. Har- 
man, 57 W. Va. 447, 50 S. E. 828. 

A void tax deed is good color of 
title both for the purposes of § 3, art. 
13, of the constitution, and the statute 
of limitations. State v. Harman, 57 W. 
Va. 447, 449, 50 S. E. 828. 

A quitclaim deed for land is good 
color of title on which to base ad- 
versary possession under the statute 
of limitations. Lloyd v. Mills, 68 W. 
Va. 241. 69 S. E. 1094; State v. United 
States Coal, etc., Co., 86 W. Va. 256, 
103 S. E. 50. 

Possession under Unrecorded Deed. 
— Though an unrecorded deed is void 
as to a subsequent purchaser for value 
and without notice, the grantee therein 
and others claiming under him may 
rely upon and use the same as color 
of title, against such purchaser, in 
proving title in themselves by ad- 
verse possession, to the land the deed 
purports to convey. Williamson v. 
Wayland Oil, etc., Co., 79 W. Va. 754. 
92 S. E. 424. 



Adverse Possession 



93 



Convej^ance by One without Title. 
—A deed, even though made by a 
stranger to the title, may Serve as 
color of title to an occupant of land 
claiming the forfeited title, under § 
3. Art. 13 of the Constitution. State 
r. Sommers, 77 W. Va. 675, 89 S. E. 1. 

A quitclaim deed, describing by 
metes and bounds the land remised, is 
good color on which to base a claim 
of title, regardless of whether or not 
the grantor appears to have any inter- 
est in or title to the land. State v. 
United States Coal, etc., Co., 86 W. 
Va. 25«, 103 S. E. 50. 

Conveyance by One Not Authorized. 
—K paper, purporting to convey land 
by proper description, though void as 
a conveyance for want of authority in 
the grantor, is admissible as evidence 
of color of title. Goad v. Walker, 73 W. 
Va. 431, 80 S. E. 873. 

A deed by a married woman, her 
husband not joining therein, and there- 
fore void, purporting to convey her 
sole and separate estate in land, is 
nevertheless color of title, by which 
and adverse possession thereunder for 
ten years and payment of taxes, the 
grantee may acquire absolute title, 
working a disseizin of her estate in 
the land. Calvert v. Murphy, 73 W. 
Va. 731, 81 S. E. 403. 

Married Woman's Deed Void for 
Want of Privy Examination. — Church 
trustees, like other persons, may, un- 
der a deed as color of title, acquire good 
title to land by adverse possession, 
though the deed be the deed of a mar- 
ried woman, purporting to convey her 
separate estate, but void for want of 
privy examination, and they will ac- 
<iuire such title as the deed purports 
to convey. Deepwater R. Co. v. Hon- 
aker, 66 W. Va. 136, 66 S. E. 104. 

Written Contract of Sale with Pos- 
session Accompanied by Claim of Per- 
formance. — It is not necessary to con- 
sider the "question whether the ven- 
dee in fact performed the contract ; 
on his part so as to have acquired a 



valid title to the land. The inquiry 
stops with the ascertainment of the 
fact that he accompanied his posses- 
sion with the bona fide claim to have 
so done, and continued such posses- 
sion unbroken for the statutory pe- 
riod. Baber v, Baber, 121 Va. 740, 94 
S. E. 209. 

B>i. CAN NOT BE USED TO 
ACHIEVE UNJUST OR 
FRAUDULENT RESULTS. 

1. RtUe Stated. 

Being a mere judicial fiction used 
in the administration of the •statute in 
order to effectuate its full, fair and 
just purpose, the doctrine of color of 
title imposes no duty upon the courts 
to permit it to be used for the achieve- 
ment of unjust or fraudulent results. 
State V, King, 77 W. Va. 37, 87 S. E. 
170. 

Effect of Fraud on Claink. — "The 
courts, with few exceptions, have de- 
clared that possession under color, to 
be adverse, must not be fraudulent. 
'It must be bona fide but it is not nec- 
essary that the claimant should be- 
lieve his claim to be a good or valid 
one. He may know that some other 
person has the better right. It is not 
necessary that he should think his 
claim good in its inception, for it gen- 
erally begins in and presupposes 
wrong; but it must not be fraudulent, 
nor, except in certain cases well set- 
tled, involve any breach of trust.' 
Swann v. Young, 36 W. Va. 57, 14 S. 
E. 426." State v. King, 77 W. Va. 37, 
42, 87 S. E. 170. 

2. Rule Illustrated. 

Fraudulent Conveyance. — A deed 
made by a person to a trustee for himself, 
or to himself by another, at his so- 
licitation and . without consideration, 
for land he does not own nor occupy 
and in which he has no interest, or 
for such land in addition to his actual 
possession, with specific intent and 
purpose to use the same as color of 
title, can not be so used by him. His 



94 



Adverse Possession 



fraud denies it the virtue, force and 
effect of color of title in his hands. 
State V. King, 77 W. Va. 37, 87 S. E. 
170. 

BJ^. SUFFICIENCY OF INSTRU- 
MENT AS COLOR OF TITLE. 

Color of title must be by deed or 
will, or other writing, which purports 
or contracts to pass title, legal or equi- 
table, and which contains sufficient 
terms to designate the land in question 
with such certainty that the boundaries 
thereof can be ascertained therefrom by 
the application thereto of the general 
rules governing the location ot lands 
conveyed by a deed. Baber i\ Baber, 
121 Va. 740, 94 S. E. 209; Blacksburg 
Min., etc., Co. v. Bell, 125 Va. 565, 100 
S. E. 806; State v. King, 77 W. Va. 37, 
41, 87 S. E. 170. 

A deed which does not identify the 
land in controversy, and is not shown 
to include it, is not evidence of color- 
able title thereto. Chilton v. White, 72 
W. Va. 546, 78 S. E. 1048. 

The possession of highland under a 
deed conveying the same can not be 
extended so as to embrace marsh land 
on the seashore not adjacent to the 
highland, where neither in the deed 
conveying the highland, nor in any 
other paper under which title is 
claimed, is there a description of 
boundaries which embraces or in- 
cludes the marsh land. Whealton v. 
Doughty, 112 Va. 649, 72 S. E. 112. 

An adverse claimant under color 
of title can not enlarge his boundary 
by testimony tending to prove marked 
timber as corners and lines not called 
for in any of his colorable deeds. Goad 
V. Walker, 73 W. Va. 431, 80 S. E. 873. 

As the principal purpose of color of 
title is to define boundaries, if it fails 
to do so with reasonable certainty, it 
is not admissible evidence. But it is 
not indispensable that the colorable 
deed should, in terms, contain a com- 
plete description of boundaries; it may 
expressly refer to, and adopt, some 



other existing paper containing them, 
and a paper thus referred to becomes 
a part of such colorable deed. Goad v. 
Walker, 73 W. Va. 431, 80 S. E. 873. 

A description of land in a deed by 
reference to land of adjoining owners 
and not as a distinct tract is suf- 
ficient as color of title even though 
made by a stranger to the title. State 
V. Sommers, 77 W. Va. 675, 89 S. E. 1. 

C. OFFICE, EFFECT AND EX- 
TENT OF POSSESSION. 

r 

1. Office or Purpose. 

The chief office or purpose of color 
cf title is to define the limits of the 
claim under it. Stale v. King, 77 W. 
Va. 37, 41. 87 S. E. 170. 

The principal purpose of color of 
title is not to show actual grant of the 
land or of any interest therein, but is 
to designate the boundary of plaintiff's 
claim. Goad v. Walker, 73 W. Va. 431, 
80 S. E. 873; Swann v, Thayer, 36 \\\ 
Va. 46, 14 S. E. 423; Mullan v. 
Carper, 37 W. Va. 215, 16 S. E. 527; 
State V. United Stales Coal, etc., Co., 
86 W. Va. 256, 103 S. E. 50, 51; 
Blacksburg Min., etc., Co. v. Bell, 125 
Va. 565, 100 S. E. 806. 

"The principal office of a claim or 
color of title is to define the boundaries 
and describe the extent of the adverse 
holding." Stover v. Stover, 60 W. 
Va. 285, 292, 54 S. E. 350. 

Such qualities as are imputed to 
color of title by the law, for limited 
purposes, are purely fictitious and are 
accorded to it only to work out just 
results. State v. King, 77 W. Va. 37, 
41, 87 S. E. 170. 

2. Effect and Extent of Possession 

Essential Under. 

a. Rule Stated. 

Barnes Code, W. Va. p. 1004, ch. 90, 
§ 19. 

"Without attempting now to describe 
color of title it may be perhaps suffi- 
cient to say its effect is to fix the char- 
acter of the occupant's possession and 



Adverse Possession 



95 



to define its extent and limits." Stover 
V. Stover, 60 W. Va. 285, 29», 54 S. E. 
350, quoting Judge Staples, in Creek- 
mur V. Creekmur, 75 Va. 430. 

There can be no constructive pos- 
session of real estate under a mere 
claim of title; adversary possession to 
extend beyond the limits of actual 
occupancy must be under color of 
title. Blacksburg Min., etc., Co. v. 
Bell, 125 Va. 565, 100 S. E. 806; Lyons 
r. Fairmont Real Estate Co., 71 W. 
Va. 754, 770, 77 S. E. 525. 

"The rule that possession of part is 
possession of the whole does not apply 
where there is no color, but only claim 
of title. There is no whole in such 
case, as there is no writing to call for 
or bound such whole.*' Wade v. Mc- 
Dougle, 59 W. Va. 113, 127, 52 S. E. 
1026. 

"The possession of the apparent 
owner of land who holds under color 
of title, having possession of part, like 
that of the real owner, extends to the 
bounds of lands embraced in his title 
papers, while the possession of the in- 
truder can extend no farther than his 
actual occupancy." Whealton v. 
Doughty, 112 Va. 649, 656, 72 S. 
E. 112; Stover r. Stover, 60 W. Va. 
285, 292, 54 S. E. 350; Marshall v. 
Stalnakcr, 70 W. Va. 394, 74 S. E. 48; 
Wade V, McDougle, 59 W. Va. 113, 
114, 52 S. E. 1026. 

Adverse possession under a deed or 
other title paper, is limite4 to the prem- 
ises actually covered thereby. Wal- 
dron V. Ritter Lumber Co., 80 W. Va. 
792. 796, 94 S. E. 393, citing Marshall 
f. Stalnaker, 70 W. Va. 394, 398, 74 
S. E. 48. 

One who enters upon land under color 
of title is presumed to have entered in 
accordance therewith; wherefore his 
actual possession of a portion of the 
property will by presumption of law 
be constructively extended to the 
boundaries defined by his color of 
title, except so far as the land so in- 
cluded is in the adverse possession of 



another. Ahner v. Young, 84 W. Va. 
336, 99 S. E. 552; Camden v. West 
Branch Lumber Co., 59 W. Va. 148, 
157, 53 S. E. 409; Richmond v. Jones, 
111 Va. 214, 221, 68 S. E. 181; Bradley 
r. Swope, 77 W. Va. 113, 87 S. E. 86; 
Curtis V. Meadows, 77 W. Va. 22, 86 S. 
E. 886; Point Mountain Coal, etc., Co. 
V. Holly Lumber Co., 71 W. Va. 21, 
28, 75 S. E. 197; Green v. Pennington, 
105 Va. 801, 54 S. E. 877. 

This is true whether the land in: 
controversy is embraced by one or 
several tracts, because actual posses- 
sion within one of two or more ad- 
joining tracts of land of the same 
owner is possession of all of them. 
Ahner v. Young, 84 W. Va. 336. 99 S. 
E. 552, 556, citing Overton v. Davis- 
son, 1 Gratt. (42 Va.) 212, 42 Am. Dec. 
544; State v. Harman, 57 W. Va. 447, 
50 S. E. 828; State v. Raymond, 84 W- 
Va. 292, 100 S. E. 81, 84. 

Upon the question of adversary 
possession it is immaterial whether 
the land in controversy be embraced 
by one or several coterminous grants 
of the older patentee; or one or several 
coterminous grants of the younger 
patentee; in either case the lands 
granted to the same person by several 
patents must be regarded as forming 
one entire tract. State v. Harman, 57 
W. Va. 447, 462, 50 S. E. S28. 

Where a party in possession of a 
tract of land purchases an adjoining 
tract which is vacant or not in the ad- 
verse possession of another, and 
grazes it and has the timber cleared 
oflF it, he will be considered as in the 
possession of the newly acquired tract. 
Roller V. Armetrout, 118 Va. 173, 86 S. 
E. 906. 

But in Chilton v. White, 72 W. Va. 
545, 78 S. E. 1048, it was held that 
actual possession of one or more 
tracts of land, contiguous to another 
tract in controversy, under a deed for 
a larger boundary which includes them 
all, does not give constructive posses- 
sion of the controverted tract, against 



% 



Adverse Possession 



the true owner thereof; that there must 
be actual possession of some part of 
the land in controversy before the rule 
of constructive possession can apply. 

Rule Applies to Lands of Common- 
wealth. — The principle that actual 
possession of a part of a tract of 
land, under color and claim of title 
to the whole, is possession of the 
whole, applies to the lands of the 
•commonwealth, as against persons not 
lawfully claiming under her. Green r. 
Pennington, 105 Va. 801, 54 S. E. 877. 

Acts of Stranger Not Interrupting 
Adverse Possession — ^West Virginia 
Statute,— By § 19, chapter 90, Code 
1906 adversary "possession of any 
part of the land in controversy under 
such patent, deed or other writing, for 
which some other person has the bet- 
ter title" is "taken and held to the 
boundaries embraced or included by 
such patent, deed or other writing un- 
less the person having the better title 
shall have actual adverse possession of 
some part of the land embraced by 
such patent, deed or other writing;" 
and the fact that some stranger to the 
better title, not shown to have entered 
under or by authority or sufferance of 
the owner of the better title may have 
cropped or otherwise used and had 
enclosed by an indifferent fence or 
barrier a small portion of the dis- 
puted boundary, does not interrupt the 
operation of the statute of limitations 
in favor of one in possession of the 
residue of the disputed boundary, oc- 
cupying and claiming the whole thereof 
l)y color of title, or render the posses- 
sion of the latter less exclusive of the 
owner of such better title. Point 
Mountain Coal, etc., Co. v. Holly Lum- 
ber Co., 71 W. Va. 21, 75 S. E. 197. 

b. Rule Illustrated. 

Color of Title Under Junior Grant — 
Possession Esstential. — Where plain- 
tiff held a 15,000-acre boundary under 
a senior grant, defendants* paper title 
under a junior grant to a tract 



within this boundary was value- 
less except as color of title. The 
plaintiff showed no actual possession, 
but it was under no obligation to do 
so. Its senior grant conferred upon it 
a constructive possession of the whole 
tract, and this constructive possession 
I would continue good regardless of the 
, junior grant, unless and until there 
' was a disseisin. Craig-Giles Iron Co. 
' V. Wickline, 126 Va. 223, 101 S. E. 225. 
! To constitute such disseisin, it was 
just as necessary for the defendants 
to take actual possession of some part 
of the land as if they had entered 
without any color. In the one case, 
their possession of part would be 
possession of the whole, while in the 
other their possession *would be 
limited to their actual occupancy; but 
in both cases it would be primarily 
essential that they should do some act 
indicating an actual possession of the 
land itself as distinguished from the 
mere taking of the products thereof. 
Craig-Giles Iron Co. v. Wickline, 126 
Va. 223, 101 S. E. 225. 

"The true or apparent owner dwell- 
ing i4>on his farm by himsdf or his 
tenant is as truly in the actual pos- 
session of his waters and unimproved 
woodlands, however extensive they 
may be, as he is of his pastures, fields, 
and gardens or that part of his land 
covered by his residence. Garrett v. 
Ramsey, 26 W. Va. 345. Such posses- 
sion is deemed to be coextensive with 
and limited only by the title or color 
of title under whiph he claims. Ahner 
V, Young, «4 W. Va. 336, 99 S. E. 552, 
556. 

Entry by Mistake. — While the gen- 
eral rule is, that one who by mistake 
enters lands of another not covered by 
his title papers will be limited in his 
adversary possession to the land actu- 
ally enclosed or of which he has had 
the pedis possessio; yet, if his title pa- 
pers do cover the land entered, and the 
entry be with the purpose and intent 
of holding the same to the limits of 



Adverse Possession 



97 



boundaries described in his deed or 
title papers, and as conveyed, and lo- 
cated on the ground by natural and 
fixed objects called for, he may by 
such entry and adversary possession 
and color of title, continued openly, 
notoriously and exclusively for the 
requisite period acquire title to all the 
land comprehended in his title papers, 
although such land may have been lo- 
cated and entered, by mistake as to 
the true location of original lines and 
corners called for in some prior oi 
ancient patent, deed or title paper, by 
which he traces his title to the com- 
monwealth. Point Mountain Coal, etc., 
Co. V, Holly Lumber Co., 71 W. Va. 
21, 75 S. E. 197. 

If the defendant in an action of un- 
lawful entry and detainer holds, not 
under color title, but under a mere 
claim of title, there being no written 
instrument defining the limits of his 
claim, his right of possession is limited 
to the pedis possessio, his actual en- 
closure. But if he holds under color 
of title, it extends to the boundaries 
therein. Camden w. West IBranch 
Lumber Co., 59 W. Va. 148, 158, 53 
S. £. 409. In general as to unlawful 
entry and detainer, see post, FORCI- 
BLE ENTRY AND DETAINER. 

Where in controversy concerning the 
location of the dividing line be- 
tween adjoining city lots one of the 
parties relies upon paper title and ad- 
verse possession it is not indispensa- 
ble that he should have had his en- 
tire lot enclosed by fence. A fence 
along a portion of the dividing line, 
which is admittedly a straight one. 
marking the extent of his claim, the 
erection and use of a barn on the lot, 
and other continuous and visible acts 
exercised thereon for a period of ten 
years, to the exclusion of all others, 
clearly indicating his claim to the en- 
tire lot, are sufficient evidence of ad- 
verse possession of the whole. Ward 
" Medley, «1 W. Va. 25, 93 S. E. 941. 
Taken Under Deed Pur- 



porting to Convey Fee — ^Title to Min- 
erals. — Where there has been no sever- 
ance of title to the surface of land and 
the underlying minerals, a conveyance 
in fee of the land constitutes color of 
title to the whole tract, minerals as 
well as surface, and adverse possession 
of the surface for the statutory period, 
claiming title to both surface and the 
underlying minerals, gives title to both, 
although the minerals be claimed by 
another under a prior deed, which was 
ineffectual to constitute a severance. 
Virginia Coal, etc., Co. v, Hylton, 115 
Va. 418, 79 S. E. 337; Virginia Coal, 
etc., Co. V. Richmond, etc., Coal Corp., 
128 Va. 258, 104 S. E. 805. 

To pbtain thdb title to all the coal in 
a tract of land, under the law of title 
by adverse possession, by means of 
exclusive, open, notorious, and hostile 
operation of a single mine on the land, 
it is essential that such ipossession be 
taken and held for the requisite period 
of time, under color of title to the 
coal. White Flame Coal Co. v. Bur- 
gess. 86 W. Va. 16, 102 S. E. 690. 

D. EFFECT OF GRANT OF POR- 
TION OF LAND IN ACTUAL 
POSSESSION. 
When one in actual possession of a 
tract of land conveys legal title to that 
portion on which is the actual posses- 
sion, his constructive, actual possession 
of the residue of the tract ceases. It 
is not so, if the owner sells such por- 
tion by executory contract. State v, 
Harman, 57 W. Va. 447, 448, 50 S. E. 
^ 828. See post, "Possession under Exe- 
! cutory Contract of Sale," V, E, 2. 

III^. AGAINST WHOM POSSES- 
SION RUNS. 

As to rights in land there can be no 
ouster or running of the statute of 
limitations against one until he has a 
right of entry. Lynch v. Brookover, 
72 W. Va. 211, 77 S. E. 983. 

The dower of a widow confers no 
right of possession upon her, except 
as to the mansion house and curtilage, 



~7 



98 



Adverse Possession 



until after assignment, and, before as- 
signment, it is no obstacle to the right 
of entry on the part of an heir and does 
not prevent the running of the statute 
of limitations against him in favor of 
an adverse claimant in possession who 
has procured a relinquishment of the 
dower in his favor by purchase thereof. 
Russell V, Tennant, 63 W. Va. 623, 60 
S. E. -609. 

IV. CONFLICTING GRANTS— IN- 
TERLOCKS. 

A. IN GENERAL. 

Where one grant conflicts in part 
with another, occasioning an interlock, 
the elder patentee under his grant ac- 
quires at once constructive seisin in 
deed of all the land embraced within 
its boundaries, although he has taken 
no actual possession of any part 
thereof. The junior grantee under hi& 
grant acquires similar constructive 
seisin in deed of all the land embraced 
by his boundaries, except that portion 
within the interlock, the seisin of which 
had already vested in the senior gran- 
tee. Green v, Pennington, 105 Va. 801, 
54 S. E. ^7. 

"An interlock occurs where the title 
papers of one person are not limited to 
or bounded by those of another, but 
the courses and distances or natural 
objects called for carry the claim of the 
one over into the land of the other so 
that the calls \n the title papers of the 
former necessarily describe a portion 
of the land included in those of the 
latter. The word itself, as used in our 
cases, necessarily implies a lapping of 
boundaries, or there can be no inter- 
lock within which actual adverse pos- 
session of a part can ripen the junior 
title into good title to the whole as 
against the senior claimant. Where 
there is an interlock, and the calls of 
the junior are for lines and corners of 
the older grant, the only question to 
be determined is the true location of 
such common lines and corners. A 
mere dispute between conflicting claim- 



ants as to where the true lines and 
corners are does not constitute an in- 
terlock within the meaning of our de- 
cisions respecting adverse possession 
of interlocks." Robinson v. Sheets, 63 
W. Va. 394. 397, 61 S. E. 347. 

B. C. D. POSSESSION rBY SENIOR 
OR JUNIOR PATENTEE OR 
GRANTEE OR THEIR PRIV- 
IES. 
In the absence of actual ad- 
verse possession, constructive pos- 
session follows the older and bet- 
ter title to the full limit of the 
claimant's boundaries. Pardee v. 
Johnston, 70 W. Va. 347, 74 S. E. 721; 
Camden r. West Branch Lumber Co., 
59 W. Va. 148, 155. 53 S. E. 409. 

The junior grantee, though in pos- 
session within his bounds, can not be 
accounted in possession of the interlock, 
unless he has actual physical posses- 
sion in it. Constructive — actual pos- 
session arising from possession else- 
where will not do. Robinson v. Lowe, 
66 W. Va. 665, 666, 66 S. E. 1001 ; State 
V. Raymond, 84 W. Va. 292, 100 S. E. 
81, 84; Green v. Pennington, 105 Va. 
801, 54 S. E. 1877. 

"If the owner of the elder title be 
in the actual possession of a part of 
the land covered by his patent, but out- 
side of the interlock, and the holder of 
the junior patent be in possession of a 
part of the land covered by his patent, 
but outside of the interlock, the actual 
possession of the holder of the better 
title is deemed to extend to, and 
cover, every part of the interlock. 
Strict adherence to this common-law 
rule would limit the adverse possession 
of the junior patentee within the inter- 
lock to his enclosure or the land actu- 
ally occupied, his pedis possessio. As 
this would work great hardship and 
injustice, the courts have so far modi- 
fied it as to make the actual possession 
of the junior patentee within the inter- 
lock extend to the whole thereof, pro- 
vided the senior patentee has not also 



Adverse Possession 



99 



a pedis possessio within it." Camden 
V. West Branch Lumber Co., 59 W. 
Va. 148, 157, 53 S. E. 409; Green v. 
Pennington, 105 Va. SOI, 54 S. E. 877; 
Chilton V. White, 72 W. Va. 545, 549, 
78 S. E. 1048; Robinson v. Sheets, 63 
VV. Va. 394, 61 S. E. 347. 

A grant from the commonwealth in- 
vests the senior patentee with con- 
structive seisin of all land included in 
the grant, and this seisin continues 
until disturbed by actual entry of an 
adverse claimant, and is then affected 
only to the extent to which the first 
patentee is dispossessed by the junior 
claimant. But this principle has no 
application to the case of a junior 
patentee or claimant where the conti- 
nuity of the original boundary had been 
severed anterior to the acquisition of 
the title, or color of title, under which 
he claims. In such case, quoad the 
junior claimant who does not connect 
his title with that of the original pat- 
entee, there is no such contiguity of 
seisin with respect to the dissevered 
tracts as would render actual posses- 
sion of one constructive possession of 
the other. Hot Springs Lumber, etc., 
Co. V. Sterrett, 108 Va. 710, 62 S. E. 
797. 

"The actual possession of the owner 
of a tract of land, lying adjacent to an- 
other tract of uncleared land, the title 
to which is vested in another person 
by a grant from the State, is not ex- 
tended over a portion of such other 
tract by the acquisition of a junior 
patent, covering such portion and pur- 
porting to vest title thereto in the 
owner of such first mentioned tract, 
however long such possession may 
continue. To work an ouster of the 
elder patentee and hold adversely to 
him, the junior patentee must take ac- 
tual possession of some part of the 
land included in the junior patent, and 
within the boundaries of the senior 
patent Such is also the statute law 
of this state. Sec. 19, ch. 90, Code." 
Chilton V, White, 72 W. Va. 545, 549, 



78 S. E. 1048; Camden v. West Branch 
Lumber Co., 59 W. Va. 148, 53 S. E. 
409. 

'*Where the state has, by conflicting 
patents, granted uncleared lands, which 
adjoin the home tract of the junior 
patentee, the possession by the junior 
patentee of his home tract, claiming 
possession of the land granted by the 
conflicting patents, is not extended to 
the lands thus granted so as to give 
him adverse possession as against the 
senior patentee." Camden v. West 
Branch Lumber Co., 59 W. Va. 148, 
162, 53 S. E. 409. 

While plaintiff, under deed for 174 
acres wholly within the junior, but 
interlocking to the extent of 25 acres 
with the senior, patent, is entitled to 
recover the interlock if it falls within 
the exceptions in the older grant and 
he has been in actual possession for 
ten years of any portion of the 174 
acres; yet, if the area in . controversy 
is not covered by any of the excep- 
tions, he can not recover it without 
showing actual and adverse possession 
for the requisite period of some part of 
the interlock. Williams v. Smith, 76 
W. Va. 287, 85 S. E. 546. 

A deed made by a claimant under a 
patent, which interlocks with an older 
one, purporting to convey land lying 
partly beyond the interlock and within 
the boundaries of the senior patent, is 
color of title to the extent of the bound- 
ary lines therein designated, but it 
does not extend the boundary lines of 
the junior patent beyond their locations 
as they would be fixed and determined, 
had such deed never been made, and it 
remains color of title as to land in- 
cluded in the older grant only to the 
extent of its boundaries, determined 
independently of the deed. Lewis v. 
Yates. 62 W. Va. 575, 59 S. E. 1073. 

Character of Possession Required of 
Junior Claimant to Make His Posses- 
sion Adverse. — To overcome the con- 
structive seisin in deed of the senior 
patentee and work an ouster, there 



100 



Adverse Possession 



must be an actual invasion of his 
boundary by some act or acts palpable 
to the senses and which would serve 
to admonish him that his seisin was 
molested. Green Vi Pennington, 105 
Va. 801, 54 S. E. 877. 

The junior patentee can not under 
any circumstances disseize or oust the 
older patentee from, or acquire an ad- 
versary possession of, the land in con- 
troversy, but by the actual occupation 
of some part thereof, by acts of own- 
ership equivalent to such actual occu- 
pation; and while such patended lands 
remain completely in a state of nature, 
they are not susceptible of a disseizin 
or ouster of, or adversary possession 
against, the older patentee, unless by 
acts of ownership effecting a change 
in their condition. Camden v. West 
Branch Lumber Co., 59 W. Va. 148, 
162, 53 S. E. 409. 

In the case of an interlock, the junior 
claimant must put his foot on some 
part of the land in controversy, and it 
is not enough to make his actual en- 
closure or perform other acts of do- 
minion, on land claimed by him out- 
side the interlock. Camden v. West 
Branch Lumber Co.. 59 W. Va. 148, 
160, 53 S. E. 409. 

Adversary possession never occurs 
until there is a disseizen or ouster of 
the owner. To effect that, an actual, 
not merely a legal or constructive, 
entry must be made within the bounds 
of the title to which adverse posses- 
sion is asserted, and the possession 
relied upon must be there only, or 
there as well as on other portions of 
the junior grant, lying outside of the 
interlock. In other words, possession 
of part is not possession of the whole, 
if the junior grant conflicts with the 
senior, unless the actual possession it- 
self is within the interlock, as shown 
by improvements, or other sufficient 
acts of dominion, done on the inter- 
lock. Camden v. West 'Branch Lum- 
ber Co., 59 W: Va. 148, 161, 53 S. E. 
409. 



V. CLAIMANT'S POSSESSION 

ORIGINALLY CONSISTENT 

WITH TRUE OWNER'S 

TITLE. 

A. IN GENERAL. 

Title to land can not be acquired 
by possession for the statutory period 
unless that possession is adverse. 
An intent to hold adversely is nec- 
essary. Union Trust, etc., Co. v. Paul- 
hamus, 74 W. Va. 1, 6, 81 S. E. 547. 
See ante, "Hostile and under Claim of 
Right," II. E. 

One who enters upon land with the 
verbal permission of the owner and 
makes improvements thereof, but with- 
out deed or other paper title, does not 
hold adversely to such owner in the 
absence of a clear, positive and con- 
tinued disclaimer of the owner's title 
brought home to his knowledge. One 
who admits the title of another in or- 
der to acquire possession can not 
deny that title in order to re- 
tain it. Thompson v. Camper, 106 Va. 
ei5, 55 S. E. 674. 

Where possession is originally taken 
and held in subserviency to, or in 
privity with, the title of the adverse 
claimant, the statute of limitations 
does not begin to run until the pos- 
session, before consistent with the ti- 
tle of the adverse claimant, becomes 
tortious and wrongful by the disloyal 
acts of the party in possession, which 
must be so open, notorious and con- 
tinued as will fully and clearly show 
such change on the part of the ad- 
verse claimant. Duggins v, Wood- 
son, 117 Va. 299, 84 S. E. 652. 

"As between parties and privies a 
possession originally taken in sub- 
servience to another's title cannot be 
changed into an adverse possession 
without proof, not only of a subse- 
quent specific intention to claim ad- 
versely, but such proof must go to the 
extent of bringing home notice of 
such intention to claim adversely to 
the owner of the dominant estate, or 



Advise Possession 



101 



be of such a character that such no- 
tice will be presumed. Creekmur v, 
Creelcmur, 75 Va. 430;" Christian v. 
Bulbeck, 120 Va. 74, 104, 90 S. E. 661. 
A possession which, in its beginning, 
was consistent with the possession of 
the true owner will not be rendered 
adverse by the lapse of any length of 
time unless there be such a change in 
the character of the original posses- 
sion as will charge the true owner 
with notice thereof. Stuart v. Meade, 
119 Va. 753, 89 S. E. 866. 

But if in a given case there is proof 
of a specific intention to claim ad- 
versely, and there is no complication 
arising from the possession having 
been taken originally by agreement or 
in subservience to a dominant estate, 
(or, if there is such complication, the 
facts are such that notice of the in- 
tention to claim adversely is brought 
home to the owner of such estate, or 
the proof as to it is of such character 
that such notice will be presumed), 
from that moment, the possession will 
be adverse, and the statute of limita- 
tions will begin to run, regardless of 
the prior absence of intent to claim 
adversely. Christian v. Bulbeck, 120 
Va. 74, 104, 90 S. E. 661. 

Where possession has been taken in 
privity with another, the true owner 
has the right to presume that the 
original character and intent of the 
possession remain unchanged until 
something has been done which will 
bring home to him notice of a disloyal 
severance of the privity. Stuart v. 
Meade. 119 Va. 753, -89 S. E. 866. 

The notice to or knowledge of the 
true owner, or others originally hav- 
ing privity of title with the disseisor, 
of his disclaimer and assertion of an 
adverse right, required to be proved 
before the running of the statute of 
limitations will begin, need not be 
actual; it may be constructive. Baber 
V. Baber, 121 Va. 740, 94 S. E. 209. 

But a mere transfer of a record title 
with no material change in the charac- 



ter of the possession is not alone suf- 
ficient for this purpose. Stuart v, 
Meade, 119 Va. 753, 89 S. E. 866. 

A disclaimer or assertion of an ad- 
verse right, where possession is 
originally taken or held under the true 
owner, may be presumed from a great 
lapse of time, with other circumstances 
which might warrant such presump- 
tion, and proof of the fact is not re- 
quired to be so convincing as to pre- 
clude all doubt. It may be proved as 
any other fact involved in a civil case 
may be proved by circumstantial evi- 
dence, the probative value and suf- 
ficiency of the circumstantial evidence 
to sustain the burden of proof required 
(i. e., by a preponderance of the evi- 
dence), being entirely with the jury. 
Baber v, Baber, 121 Va. 740, 94 S. E. 
209. 

B. INTENT. 

"Intention to hold adversely is an 
indispensable element of adversary pos- 
sessiort (see Clark v. McClure, 10 Gratt. 
(51 Va.) 305, 310; Early v. Garland, 
13 Gratt. (54 Va.) 1; Haney v. 
Breeden, 100 Va. 781, 784, 42 S. E. 
916), and it is wanting where the oc- 
cupant does not intend to claim the 
fence as his line unless it be the true 
line." Stuart v. Meade, 119 Va. 753, 
761, 89 S. E. 866. 

Where a person occupies and posses- 
ses the land of another, through a 
misapprehension or mistake as to the 
boundaries of his land, with no in- 
tention to claim as his own that which 
does not belong to him, but only in- 
tends to claim to the true line, where- 
ever it may be, he does not hold ad- 
versely, for, in this state, the intention 
to hold adversely is an indispensable 
element of adverse possession. Stuart 
V. Meade, 119 Va. 753, 89 S. E. 865; 
Clinchfield Coal Co. v. Viers, ill Va. 
261, 68 S. E. 976; Christian v. Bulbeck, 
120 Va. 74, 90 S. E. 661. 

This rule does not apply where it 
is shown that a specific intention ex- 



102 



Adverse Possession 



ists on the part of the possessor to 
claim title to a definite line on the 
ground in fact beyond the true title. 
If a party takes and holds actual pos- 
session beyond his true boundary line, 
and with good faith» though mistaken, 
claims title to and occupies the land, 
his possession is adverse to the ex- 
tent of his actual possession, and such 
possession, if continued unbroken for 
the statutory period, will ripen into a 
perfect title under the statute of lim- 
itations. Christian v. 'Bulbeck, 120 Va. 
74, 90 S. E. 661. 

BJ4. ENTRY UNDER PAROL GIFT. 
An entry on land under a parol gift 
from the owner, and a claim to hold 
any estate by virtue of the gift, is in its 
nature a recognition of the continued 
existence of a subsisting title in the le- 
gal owner; and a claim to hold an 
estate by gift from the legal owner is 
a claim to hold, in subordination to his 
title and not adversely. Thompson v. 
Camper. 106 Va. 315, 317, 55 S. E. 674. 

C. COTENANTS. 

See post, JOINT TENANTS AND 
TENANTS IN COMMON. 

D. BETWEEN MORTGAGOR AND 

MORTGAGEE. 

In the case of a mortgagor, who 
holds under the owner of the legal 
title, a privity exists which precludes 
the idea of a hostile, tortious pos- 
session which could silently ripen into 
a title by adverse possession under the 
statute of limitations. Thompson v. 
Camper, 106 Va. 315, 317, 55 S. E. 674. 

E. VENDOR AND PURCHASER. 

1. In GeneraL 

The possession of a vendor of land 
after a conveyance in fee to his grantee 
is in subserviency to the grantee, and 
a clear, positive and continued dis- 
claimer and disavowal of such relation, 
and the assertion of an adverse right, 
brought home to the knowledge of the 
true owner, are indispensable to change 



the character of the grantor's posses- 
sion and render it adverse to the gran- 
tee. Schaubuch v, Dillemuth, 108 Va. 
86, 60 S. E. 745. 

Deed by Father to Child of Part of 
Tract on Which Father Residea.— A 
child in possession of land formerly 
constituting a part of the tract on 
which his father resides, under a valid 
deed therefor from his father, holds in 
his own right under the deed, and, as 
between them, no question of title by 
adverse possession arises. William- 
son V. Wayland Oil, etc., Co., 79 W. 
Va. 754, 9Z S. E. 424. 

8. Possession under Executory Con- 
tract of Sale. 

I a. In General. 

j Possession by a vendee under an 

I executory contract of sale of part of 

a tract of land is the possession of tht 

vendor. State v, Harman, 57 W. Va. 

447, 448, 50 S. E. 8^. 

A vendee who enters under an exec- 
utory contract, which leaves the legal 
title where it was, and contemplates a 
future conveyance, enters in subordi- 
nation to it, holds under and relies 
upon it to protect his possession in 
the meantime. And in such case, a 
privity exists which precludes the 
idea of a hostile, tortious possession 
which could silently ripen into a title 
by adverse possession under the statute 
of limitations. Thompson v. Camper, 
106 Va. 315. 317, 55 S. E. 674. 

Where land is entered pursuant to 
an oral contract for the sale or gift 
thereof by the owner, title thereto can 
not subsequently be acquired by ad- 
verse possession, no matter how long 
continued, without the previous asser- 
tion of a hostile claim thereto and pos- 
session thereunder and notice thereof 
to the owner from whom possession 
was so acquired. Bumpus v, Ohio 
Cities Gas Co., 86 W. Va. 2^7, 103 S. 
E. 62. 

"In American and English En- 
cyclopedia of Law and Practice, vol. 



Adverse Possession 



103 



2, 461, it is said that as against per- 
sons other than the vendor, 'between 
whom and the vendee there is no priv- 
ity, the possession of the vendee is 
deemed to be adverse; and it is well 
settled that the possession of a person 
who enters under an executory con- 
tract to purchase, and subsequently ob- 
tains his deed, in pursuance of the 
contract, is adverse from the time of 
his entry as to all the world except 
the vendor/ " Lloyd v. Mills, 68 W. Va. 
241, 244, 69 S. E. 1094. 

b. Purchase Money Paid 

"The possession of the purchaser 
(under an executory contract of sale) 
is not adverse to his vendor, although 
he has paid all the purchase money and 
used and occupied the land for his ex- 
clusive benefit; nevertheless his con- 
tract is a recognition of outstand- 
ing legal title in his vendor, and his 
holding will be regarded as in subordi- 
nation thereto. Core v, Faupel, 24 W. 
Va. 238; Parkersburg Nat. Bank v, 
Neal, 28 W. Va. 744; Chapman v. 
Chapman, 91 Va. 397, 21 S. E. 813; 
Pickens v. Stout, 67 W. Va. 422, 68 S. 
E. 354." James Sons Co. v, Hutchin- 
son, 79 W. Va. 389, 403, 90 S. E. 1047. 

c. Disclaimer. 

"Before the statute of limitations 
will commence to run, ther^ must be 
an interruption of the privity of title 
between the purchaser and his vendor 
by the assertion of an adverse right. 
'The possession of an incomplete pur- 
chaser becomes adverse only when 
there has been a severance of the re- 
lation of vendor and vendee by a dis- 
tinct avowal on the part of the ven- 
dee that he is holding adversely and 
not in subordination to the title of 
the vendor, and notice of such dis- 
claimer is brought home to the ven- 
dor.'" James Sons Co. v. Hutchin- 
son, 79 W. Va. 389, 402, 90 S. E. 1047. 
Marbach v. Holmes, 105 Va. 178, 52 
S- E. 828; James Sons Co. v. Hutchin- 
son, 79 W. Va. 389, 90 S. E. 3 047. 



d. Eff6ct'c»( Siib»e<pi«ait Grant to Third 
Party. 

R. made a bond for the conveyance 
of land to W. Afterwards R. made a 
deed conveying land to K., said to take 
in part of the land included in the title 
bond. Possession under the title bond 
of the interlock would not be adverse 
to R. while holding the legal title, but 
would be adverse to K. from the date 
of R.'s deed to him. King v. Thomp- 
son, 58 W. Va. 455, 52 S. E. 487. 

Where plaintiff claims under a deed 
which after describing by exterior 
boundaries the larger tract, and as a 
further description of the land granted, 
says, containing by actual survey and 
estimate twelve thousand six hundred 
and twenty-five (12,625) acres, exclu- 
sive of all prior sales and grants, and 
plaintiff fails to locate the preferred or 
excepted lands, proof of possession of 
a small tract within the exterior 
boundaries of the larger tract by one 
claiming under an executory contract 
from a previous owner or claimant of 
such large tract, will not, within the 
rule of Core v. Faupel, 24 W. Va. 238, 
and State v, Harman, 57 W. Va. 447, 
50 S. E. 828, aid plaintiff's title, or ex- 
cuse his omission to locate the tracts 
excepted or reserved in the grants and 
deeds under which he claims. Rock 
House Fork Land Co. v. Gray, 73 W. 
Va. 503, 80 S. E. 821. 

V/i, Possession under Deed or C(Mi- 
tract of Sale Executed by a Co* 
tenant. 

See post, JOINT TENANTS AND 
TENANTS IN COMMON. 

F. TRUST ESTATES. 

In the case of a cestui que trust, who 
holds under the owner of the legal 
title, a privity exists which precludes 
the idea of a hostile, tortious pos- 
session which could silently ripen into 
a title by adverse possession under the 
statute of limitations. Thompson v. 
Camper, 106 Va. 315, 317, 55 S. E. 674. 



104 



Adverse* Possession 



G. BETWEEN LIFE TENANT AND 
REMANDERMAN OR REVER- 
SIONER. 

The possession of a life tenant, as 
such, can not be adverse to the re- 
mainderman or reversioner, because 
the right of action of the latter does 
not accrue until the death of the ten- 
ant for life. Duggins v. Woodson, 117 
Va. 299, 84 S. E. 652. Custer v. Hall, 
71 W. Va. 119, 76 S. E. 183; Lynch v, 
Brookover, 72 W. Va. 211, 77 S. E. 983. 

The possession of those claiming 
under the life tenant is not adverse to 
those entitled in remainder. Lynch v. 
Brookover, 72 W. Va. 211, 77 S. E. 
983. 

Where defendants' predecessor ac- 
quired possession as a tenant by cur- 
tesy, limitations do not begin to run 
against the remaindermen and in favor 
of defendants until their possession 
has become notoriously tortious and 
adverse. Duggins v, Woodson, 117 
Va. 299, 84 S. E. 652. See also, Lynch 
V, Brookover, 72 W. Va. 211, 77 S. E. 
983. 

H. LANDLORD AND TENANT. 

In the case of a lessee, who holds 
under the owner of the legal title, a 
privity exists which precludes the idea 
of a hostile, tortious possession could 
silently ripen into title by adverse pos- 
session under the statute of limitations. 
Thompson v. Camper, 106 Va. 315, 317, 
55 S. E. 674. 

Where possession is originally taken 
or held under the true owner, a clear, 
positive and continued disclaimer and 
disavowal of title and assertion of an 
adverse right, brought home to the 
knowledge of the party, are indispen- 
sable before any foundation can be 
laid for the operation of the statute 
of limitations. The statute does not 
begin to operate until the possession, 
before in privity with the title of the 
true owner, becomes tortious and 
wrongful by the disloyal acts of the 
occupying tenant, which must be 



open, continuous and notorious, so as 
to preclude any doubt of the charac- 
ter of the holding or the fact of 
knowledge on the part of the owner. 
Baber v, Baber, 121 Va. 740, 94 S. E. 
209. Thompson v. Camper, 106 Va. 315, 
317, 55 S. E. 674. 

Where the conunon lessee of two ad- 
joining tracts enters and takes posses- 
sion of a particular part of the leased 
lands, as lessee of one of the tracts, 
and puts down an oil well, and by a 
sign in large letters placed on the 
walking beam and plainly visible to 
persons passing on the railroad and 
other public roads in the vicinity of 
the well, gives notice thereby of the 
character of his holding, and under 
whose lease the well was drilled and 
is being operated, and connects such 
well with a tank on the land of such 
lessor into which the oil produced is 
run, and from which the oil is deliv- 
ered into the pipe line of a common 
carrier, and for more than ten years 
the well is so operated, and the roy- 
I alty oils paid to the lessor under 
whose lease such entry was made, he 
is not, after the statute of limitations 
has fully run, estopped to deny the ti- 
! tie of the other lessor, although such 
well may in fact have been located on 
his lands. Lockwood v. Carter Oil 
Co., 73 W. Va. 175, 80 S. E. 814. See 
post, LANDLORD AND TENANT. 

Possession of Tenant of Ancestor In- 
ures to Benefit Heirs and Devisees. 
— The possession of land by a tenant 
of an ancestor and true owner, con- 
tinued without visible change after his 
death, inures to the benefit and protec- 
tion of his heirs and devisees, and does 
not become adverse as to them with- 
out such notice thereof as in law ef- 
1 fects an ouster. Guthrie v, Beury, 8S 
W. Va. 443, 96 S. E. 514. 

Grantor Rentaining in Possession 
after Execution of Conveyance. >- 
If the grantor in a deed, containing 
a covenant of general warranty, con- 
veying away the title in fee simple. 



Adverse Possession 



105 



remain in possession after the execu^ 
tion thereof, he is presumptively the 
tenant of the grantee, and can not set 
up an independent title in himself, 
without having shown some act of 
ouster of his landlord, or the equivalent 
thereof. Blake v, O'Neal, 63 W. Va. 
483, 61 S. E. 410. 

Estoppel to Deny Landlord's Title. — 
Sec post, LANDLORD AND TEN- 
ANT. 

I. PRINCIPAL AND AGENT. 

An agent of a corporation was in 
possession of a tract of land so long 
as the corporation had anything to do 
with the land as its agent. After the 
corporation was placed in the hands 
of a receiver and ceased to have any 
connection with the land, the agent 
took a deed in his own name to a part 
of the land. From and after that date 
down to the bringing of an action of 
ejectment (more than 25 years), the 
agent and his grantees maintained pos- 
session of a part of the land, with claim 
to the whole, conveyed to him 
under his deed. Held: That such 
agent and his grantees, his code- 
fendants in the action of eject- 
ment, thereby acquired a complete and 
indefeasible title to the land, if they did 
not already have it by virtue of their 
title papers. Rose v. Agee, 128 Va. 
502, 104 S. E. 827. 

J. EASEMENT— POSSESSION BY 
OWNER OF SERVIENT 
ESTATE. 

When a railroad right of way is only 
an easement, occupation by enclosure 
and cultivation of a part of it by the 
owner of the servient estate, until it 
is needed for the operation of the rail- 
road, is presumed to be permissive and 
not adverse; and the statute of limita- 
tions will begin to run only from the 
time the railroad company has notice 
of the occupier's hostile claim. Dulin 
V. Ohio River Co., 73 W. Va. 166, 80 S. 
E. 145. 



Vy^. OFFER TO PURCHASE AD- 
VERSE CLAIM. 

An offer to purchase an adverse 
claim does not make the claim good. 
Craig-Giles Iron Co. v. Wickline, 126 
Va. 223, 101 S. E. 225. 

VI. PROPERTY WHICH MAY BE 
HELD ADVERSELY. 

A. REAL PROPERTY. 

1. State and County Lands. 

a. In General. 

(1) In Virginia. 

The statute of limitations does not 
run against the state, unless the statute 
expressly so provides, as to real estate 
held by it. This rule applies to all 
suits for the sole benefit of the state, 
although not brought in its name; and 
the courts will determine who is the 
real party in interest by reference not 
merely to the name in which the suit is 
brought, but to the facts as they ap- 
pear in the record. The rule has no 
application to cases in which the state 
is not the real plaintiff, although the 
suit be brought in its name. Eastern 
State Hospital v. Graves, 105 Va. 151, 
154, 52 S. E. 837. 

(2) In West Virginia. 

The statute of limitations under ad- 
versary possession runs against the 
state as to its land not used in govern- 
mental administration. State v. Har- 
man, 57 W. Va. 447, 448, 50 S. E. 828. 

As to its land owned as a proprieto'r, 
not used for governmental purposes, 
the state is an individual subject to the 
statute of limitations, for the reason 
that a statute says, *'Every statute of 
limitations, unless otherwise provided, 
shall apply to the state." W. Va. Code 
1906, chap. 35, § 20. Until the Code of 
1868, going into effect 1st April, 1869, 
that was not the law, because until 
then the rule was, "Nullum tempus 
occurrit regi," no time runs against 
the king, and this applied to a state. 
But that statute changed the old rule 



106 



Adverse Possession 



as to land not used for governmental 
administration. As to property so used, 
it is not under the statute. Riffle v. 
Skinner, 67 W. Va. 75, 90, 67 S. E. 1075. 

The actual continuous possession 
under color or claim of title, and pay- 
ment of taxes, required by § 3, Article 
XIII, of the Constitution, and § 6, of 
chapter 105, of the Code, to transfer 
the State's title to lands must be ac- 
tual, visible, notorious and continuous, 
not uncertain and desultory, as by 
occasional trespasses, prevention of 
trespassing by others, cutting of tim- 
ber, payment of taxes, etc. State ^. 
Moore, 71 W. Va. 285, 76 S. E. 461. 

"What is meant by actual continuous 
possession, within the meaning of the 
constitution and statute? Does the un- 
certain desultory kind of possession 
proven in this case answer the require- 
ment? We think not. Our decisions 
say that surveys, cutting wood, occa- 
sional occupancy, with payment of 
taxes will not do. Core v, Faupel, 24 
W. Va. ©38; Oney v. Qendenin, 28 W. 
Va. 34. In Wilson r. Braden, 56 W. 
Va. 372, 49 S. E. 409 it was said: *A 
mere claim to possession accompanied 
by occasional cutting of timber, the 
prevention of trespasses, the payment 
of taxes and the assertion of title is 
not sufficient, but it must be such oc- 
cupation, use or holding of the prop- 
erty or change in its character, as will 
make such claimant during such stat- 
utory period icontinuously subject to 
be treated as a trespasser.' " State v. 
Moore, 71 W. Va. 285, 76 S. E. 461. 

• 

b. Lands Forfeited for Nonentry and 
Nonpayxnient of Taxes. 

As to acquisition of lands forfeited 
to the state for nonpayment of taxes 
under sec. 3, art. 13, of the Constitu- 
tion of West Virginia, see post, TAXA- 
TION. 

"As to lands forfeited to the state 
for nonentry and nonpayment of 
of taxes, or acquired in any such man- 
ner as to make them transferrable un- 



der the constitution and statute, there 
can be no such thing as adverse pos- 
session. Lewis V. Yates, 62 W. Va. 
575, 59 S. E. 1073; State v. Morgan, 75 
W. Va. ^2, 83 S. E. 288; State v. Bar- 
man, 57 W. Va. 447, 50 S. E. «28; State 
V, King, 64 W. Va. 545, «3 S. E. 495; 
Levasser v, Washburn, 11 Gratt. (52 
Va.) 572; Staats v. Board, 10 Gratt. 
(51 Va.) 400;" State v. Raymond, 84 
W. Va. 292, 100 S. E. 81, 83. 

The statute of limitations does not 
run against the statute so as to prevent 
forfeiture of land titles for non-entry 
for taxation, under § 6 of article thir- 
teen of constitution of West Virginia 
or the transfer of forfeited titles un- 
der § 3 of said article. Lewis v. 
Yates, 62 W. Va. 575, 59 S. E. 1073. 

c. Lands Granted by the State. 

Neither actual nor constructive pos- 
session of her land can affect the rights 
of the commonwealth, and hence such 
possession can not affect the rights of 

I 

I her grantee. The estate of the com- 
monwealth is divested by her grant and 

' vested in the patentee. Such grant 
confers title and seisin upon the g^ran- 
tee and puts him constructively in 
possession, notwithstanding at the 
time of the grant there may have been 
actual possession of the premises by 
another person, for, since the common- 
wealth can not be disseised, such per> 
son's possession can not be adversary, 
and the grantee, being by the grant 
placed in constructive possession, can 
not be disseised or ousted except by 
an actual and palpable invasion of his 
boundary, and adverse possession con- 
tinued for the period of limitation after 

I the date of his grant. Green v, Pen- 

' nington, 105 Va. «01, 802, 54 S. E. 877. 

2. Public Highways and Streets. 

Public highways belong to the state, 

and the statute of limitations does not 

' run against the rights of the public 

therein. Norfolk, etc., R. Co. v. Board, 

110 Va. 95, 65 S. E. 531. <Board v. Nor- 



Adverse Possession 



•107 



folk, etc., R. Co., 119 Va. 763, 91 S. 
E. 124. 

No title by adverse possession can be 
acquired in a public street. Bellenot v. 
Richmond, 108 Va. 314, 61 S. E. 785. 

However long continued, encroach* 
ments on a public street will not con- 
fer title, by adverse possession, to any 
part of the thoroughfare. Elkins v. 
Donohoe, 74 W. Va. 335. 81 S. E. 1130. 
See also, Elkins t\ OfThaus, 74 W. Va. 
339, 81 S. E. 1132. 

However long continued, encroach- 
ments on a public road or street by an 
abutting lot owner, in this case steps 
leading to his property, will not confer 
title by adverse possession or pre*- 
scriptive right thereto in any part of 
the thoroughfare; the right of the pub- 
lic to remove such encroachments be- 
ing superior to that of the lot owner 
to maintain them. Jones v, Clarks- 
burg, 84 W. Va. 257, 99 S. E. 484. 

Where a road was constructed as a 
turnpike under authority of statute, 
and the right to take tolls was granted 
to a private or simi-private corpora- 
tion, the turnpike, when established, is 
a public road, and when the dedication 
of the right of way for it was accepted, 
it became complete, and the rights of 
the public therein became fixed, and 
title to any part of such highway could 
not be acquired by adverse possession, 
as the statute of limitations does not 
run against the State, unless expressly 
mentioned. Virginia Hot Springs Co. 
r. Lowman, 126 Va. 424, 101 S. E. 326. 

3. Railroad Right of Way. 

The doctrine of adversary possession 
is applicable to land acquired by a 
railroad company for its right of way. 
Dulin V. Ohio River R. Co., 73 W. Va. 
166, 170, 80 S. E. 145, wherein Wil- 
liams, J., delivering the opinion of the 
court said: "The courts of the differ- 
ent states are in dirtct conflict on 
this question-; and the members of this 
court are also divided in opinion on 
it." 



B. EASEMENTS. 

5. Right in a Cemetery Lot. 
I While the right which one acquires 
in a cemetery lot is rather in the nature 
of a perpetual easement subject to be 
controlled by the state in the exercise 
of its police power, it is such a valu- 
able right as a court of equity will pro- 
tectf and the same character of ad- 
verse possession that will confer title 
to real estate will sufRce to confer 
such right. Sherrard v. Henry (W. 
Va.), 106 S. E. 705. 

Where a parcel of land has been set 
apart by the owner thereof as a place 
for the burial of the dead those who, 
with the consent and acquiescence of 
such owner, use the same for the 
purpose for which it has been dedi- 
cated, selecting and appropriating 
plots or squares for the burial of their 
dead therein free of charge, may ac- 
quire a right to such plots or squares 
so appropriated by adverse possession. 
Sherrard v. Henry (W. Va.), 106 S. E. 
705. 

C. PERSONALTY. 

See post, LIMITATION OF AC- 
TIONS, 

VII. EFFECT OF ADVERSE POS- 
SESSION. 

A. IN GENERAL. 

1. Doctrine Stated. 

"The result of the statute of limita- 
tions is so absolute that the adversary 
possession operates as a transfer of 
the legal title, hence a disseizin the 
holder of the better title." Calvert v. 
Murphy, 73 W. Va. 731, 733, 81 S. E. 
403. 

A title to land, acquired by ad- 
verse possession, is respected in courts 
of equity as well as in courts of law. 
Depue V. Miller, 65 W. Va. 120, &4 S. 
E. 740. 

The statutes prescribing a limita- 
tion to actions for the recovery of 
lands have the effect of vesting in an 
adverse occupant who comes within 



108- 



Adverse Possession 



their terms a new, independent and 
indefeasible title — one paramount to 
and good against that of all other per- 
sons, no matter how or when such 
other title may have been derived or 
in what form or forum it may be as- 
serted or sought to be made effective. 
Less than this would not accomplish 
the purpose of the legislation. Mc- 
Clanahan v. Norfolk, etc., R. Co., 122 
Va. 705, 715, »6 S. E. 453. 

"The better reason and the clear and 
unmistakable result of the authorities 
is to the eflFect that a true adverse 
possession for the statutory period 
confers upon the occupant a new, in- 
dependent, unincumbered, indefeasible 
title, a weapon of defense and offense, 
good alike at law and in equity in all 
proceedings which call in question its 
validity or endanger its security. In 
short, such a title, though not derived 
from the former owner, is as good as 
it would be possible to acquire by deed 
from a former owner of a perfect title, 
or by a grant from the commonwealth.'* 
McClanahan v, Norfolk, etc., R. Co., 
122 Va. 705, 717, 96 S. E. 453. 

Actual, open, notorious, exclusive 
and continuous adverse possession of 
land for more than ten years, con- 
fers good legal title, enabling the 
owner to maintain an action for un- 
lawful entry and detainer against one 
who enters unlawfully. Harman v, 
Alt, 69 W. Va. 287, 71 S. E.* 709. Riffle 
V, Skinner, 67 W. Va. 75, 67 S. E. 1075. 

"Adverse possession of land for the 
period of the statutory bar to real ac- 
tions is a source of title upon which 
one may recover in ejectment. Plain- 
tiff need only trace his title to such 
source.*' Riffle v. Skinner, €7 W. Va. 
75, 83, 67 S. E. 1075. See post, EJECT- 
MENT. 

The adverse occupant who has held 
for the statutory period does not stand 
in the position of a grantee from the 
former true owner, but his occupancy 
has, by authority of the state speaking 
through the statute, extinguished all 



other titles, and has vested in him. an 
absolute and exclusive right to the 
possession. His title is not in any 
sense in privity with that of the for- 
mer owner, and can not be questioned 
either by such former owner or by 
any one claiming through him. Mc- 
Clanahan V. Norfolk, etc., R. Co., 122 
Va. 705, 715, 96 S. E. 453. 

Some expressions are to be found in 
the text books and decisions on this 
subject which, standing alone, might 
seem to indicate that the adverse oc- 
cupant merely' takes over the title of 
the former owner. It will usually, if 
not always, be found, however, that 
such expressions occur only in a con- 
nection which assumes a perfect title 
in the former owner, and are used 
only as a means of conveying the idea 
that adverse possession confers a title 
complete and perfect for all purposes. 
McClanahan v, Norfolk, etc., R. Co.. 
122 Va. 705, 71€, 96 S. E. 453. 

The rule that acquiesence or ad- 
missions by a landowner, made under a 
mistake as to his rights, will not estop 
him from subsequently enlarging his 
possession to the limits of his deed, does 
not apply as against one who has ac- 
quired good title by adverse posses- 
sion. Harman v, Alt, 69 W. Va. 287, 71 
S. E. 709. 

2. Doctrine Illustrated. 

Rights Acquired by Owners of Junior 
Patent. — Where a junior patentee and 
his successors in title hold during 
many years continuous and uninter- 
rupted possession of the land granted 
by the patent, with the knowledge and 
acquiescence of the owner and the suc- 
cessive grantees of a senior patent of 
a larger acreage, including the land of 
the junior patent, the owners of the 
junior patent thereby acquire pro- 
prietary rights superior to those of the 
owners of the senior patent. Ahner 
V. Young, 84 W. Va. 336, 99 S. E. 552. 

Defects in Title Cured.— Defects in 
a person's title to land are cured by 



Adverse Possession 



109 



lapse of time, where he has been in the 
uninterrupted, honest, and adverse pos- 
session of the land under color of title 
for over 25 years. Bryan v. Augusta 
Perpetual Bldg., etc., Co., 104 Va. 611, 
52 S. E. 357. 

Lien of JudgxDients against Former 
Owner Barred. — In a creditor's suit 
the commissioner to whom the cause 
was referred reported numerous judg- 
ments as alive and subsisting liens on 
the real estate of the judgment debtor. 
He also reported numerous parcels of 
real estate liable to the Hen of said 
judgments, and a lot which had been 
conveyed to the judgment debtor and 
which had never been conveyed to 
anyone by him, in the possession of a 
railway company, which claimed the 
same by the most notorious acts of 
adverse possession, exercised by it- 
self and those under whom it claimed. 
The claim of the railway company to 
title by adverse possession was de- 
cisively supported by all the esstential 
elements of such a title. Its prede- 
cessors entered into possession, before 
the recovery of the judgments referred 
to, under a color and claim distinctly 
adverse to, and in no wise in privity 
with, the title of the judgment debtor, 
and this possession, in most emphatic 
manner, had continued exclusively, un- 
interruptedly, visibly, notoriously, and 
in hostility to all other titles, for more 
than twenty-three years before the in- 
stant suit was brought, and for nearly 
thirty years before the judgment 
creditors asserted any claim of lien 
upon the property, or attempted by 
amended pleadings to make the rail- 
way company a party. During these 
decades, the adverse occupants had 
expended many thousands of dollars 
in permanent improvements on the 
premises. Held: That any title to the 
property claimed by the railway com- 
pany which could be acquired by virtue 
of the lien of the judgments asserted 
in the instant suit would be a title held 
under the judgment debtor; that the 



right of action to assert such title 
would be in terms barred by section 
2915 of the Code of 1904 (Code 1919, 
sec. 5805); and that the effect of this 
section can not be avoided by resort- 
ing to a chancery suit. McClanahan v. 
Norfolk, etc., R. Co., 122 Va. 705, 96 
S. E. 453, distinguishing Flanary v. 
Kane, 102 Va. 547, 46 S. E. 312, and 
Pratt V. Pratt, 96 U. S. 704, 24 L. Ed. 
805. 

In the case at bar the appellants con- 
tended that the instant case was one to 
enforce the lien of a judgment, not an 
action to recover land, and, therefor, 
section 2915 of the Code of 1904 (Code 
1919, sec. 5805), did not apply; and 
that under sections 3567 and 3571, 
Code of 1904 (Code 1919, sees. 6470 
6473), their lien was valid and enforce- 
able. It is true that under section 3571 
of the Code the lien of a judgment may 
be indefinitely continued against the 
the land of the judgment debtor in his 
possession, or of others holding titles 
derived from and in privity with him. 
But obviously the same rule can not 
be applied to strangers who havie ac- 
quired a perfect legal title not in priv* 
ity with but adversely to the title of 
the judgment debtor. In other words, 
the life of a judgment may be indefi- 
nitely prolonged as to any property 
upon which it can operate, but when- 
ever the right of the judgment debtor 
to make an entry on or bring an ac- 
tion to recover any land held adversely 
is tolled by section 2915, the right of 
his judgment creditor to subject such 
land to the satisfaction of his judg- 
ment also ceases. The lien is a vested 
right, but not more so than the title to 
which the lien attaches, and when the 
statute destroys the latter it necessarily 
destroys the former. McClanahan v. 
Norfolk, etc., R. Co., 122 Va. 705, 96 S. 
E. 453. See post, JUDGMENTS AND 
DECREES. 

Theoretically and technically, a suit 
to enforce a lien is not a suit to recover 
land, but a practical and rational ap- 



no 



Adverse Possession 



plication of section 2915 of the Code 
(Code 1919, sec. 5805), in the light of 
its object and purpose, neither re- 
quires nor permits a holding that ^ 
lien (which is a mere right to sell a 
title for debt) stops the statute from 
running in favor of an adverse oc- 
cupant and enables the lienor, by a 
judicial sale, to infuse life into a title 
which the statute has annihilated. Mc- 
Clanahan v, Norfolk, etc., R. Co., 122 
Va. 705, 96 S. E. 453. 

Assuming, but not deciding, that 
one who has secured title to property 
through adverse possession is a proper 
party in a creditor's suit to enforce the 
lien of judgments against a former 
owner of the property, and that the 
question of title between a judgment 
debtor and an adverse claimant can 
be tried in a suit to enforce the judg- 
ment lien, then the statute of limita- 
tions (section 2915, Code of 1904; 
sec. 5805, Code 1919) must be held to 
protect the adverse claimant if he 
shows sufficient facts as to the charac- 
ter and duration of his possession. If 
a legal right would be barred in a suit 
to enforce it in a court of law, it or an 
analogous equitable right will be 
likewise barred in a suit to enforce it 
in the equitable forum. McClanahan 
r. Norfolk, etc., R. Co., 122 Va. 705, 
96 S. E. 453. See post, CREDITORS 
SUITS. 

EfiFect of Adverse PosBession by 
Church Trustees. — "The authorities 
say that church trustees can acquire 
title by adverse possession, and that 
the title thus acquired is not encum- 
bered by any equitable trust which 
niay have been in force prior to the 
date on which the adverse possession 
began. 24 Am. & Eng. Ency L. 362, 
and the cases cited in note 9." Deep- 
water R. Co. V. Honaker, 66 W. Va. 
136, 147, 66 S. E. 104. 

B. AS PRESUMPTION OF GRANT. 

"A presumption of grant and title 
when there has been adverse posses* 



sion for the statutory period sufficient 
to bar recovery, operating to support 
plaintiff's title in actions of ejectment, 
has long been recognized in the law of 
the Virginias." Riffle v. Skinner, 67 
W. Va. 75, 81, 67 S. E. 1075. 

"Where the origin of the possession 
is not actounted for, and would be un- 
lawful unless there had been a grant, 
length of possession is prima facie 
evidence, but only prima facie, from 
which a jury might or might not have 
presumed a conveyance. 2 Minor on 
Real Property, section 1035." McCau- 
ley V. Grim, 115 Va. 610, 616, 79 S. E. 
1041. 

The plaintiff, by the showing of ad- 
verse possession for a length of time 
which uqder the law vests one with 
title, sufficiently negatives all out- 
standing title and raises in his favor 
the presumption of a grant. He makes 
a prima facie case. It remains for the 
defendant to overthrow it. "Where an 
adverse possession is shown, the bur- 
den is on the true owner to show 
why it should not be operative against 
him, such as that he was within some 
exception contained in the statute, or 
that during a necessary period of the 
possession the title to the land was in 
the government." 2 Enc. L. & P., 
576. Riffle V. Skinner, 67 W. Va. 75, 
79, 67 S. E. 1075. 

VIII. EVIDENCE. 

B. ADMISSIBILITY AND COMPE- 
TENCY. 

Evidence Admisaible to Show Pos- 
session. — Statements by a person cut- 
ting timber on land or cultivating it, 
that he is so doing under authority of 
a certain person as owner, made while 
so doing, are admissible when the 
question of possession by such owner 
is involved. Wade v. McDougle, 59 
W. Va. 113, 52 S. E. 1026. 

Evidence tending to show that the 
predecessor in title of the defendant 
in ejectment claimed the land now in 
controversy, exercised acts of owner- 



Adverse Possession 



HI 



ship over the same, or portions thereof, 
by cutting, using and selling timber 
from it, clearing and cultivating por- 
tions of it, with the knowledge of and 
without objection on the part of the 
predecessor in title of the plaintiff, is 
clearly competent as tending to show 
where the predecessors in title of 
both the plaintiff and the defendant 
regarded the line between them, and 
also as tending to show adversary 
possession on the part of the pre- 
decessor in title of the defendant, and 
those who claim under him, even 
though the acts mentioned were not 
sufficient to show title by adversary 
possession. Smith v. Stanley, 114 Va. 
117, 118, 75 S. E. 742. 

Evidenoe Admissible to Show Pos- 
session Was Not Adverse. — In eject- 
ment where the defense was adverse 
possession, the record of a suit for 
specific performance brought three 
years before the commencement of the 
ejectment action by defendant against 
his alleged vendor, under whom plain- 
tiff claimed, in which suit the bill was 
dismissed, was admissible to show that 
defendant's possession was not ad- 
verse at that time. Marbach v. 
Holmes, 105 Va. 178, 52 S. E. 828. 

Deed Admissible as Color of Title. 
—-A deed from a special c6mmissioner 
purporting to be made under authority 
of a decree is admissible in evidence 
to give color of title for adverse pos^ 
session, though such decree is not 
shown. Wade v, McDougle, 59 W. 
Va. 113, 52 S. E. 1026. 

Record of Condemnation Proceed- 
ings Admissible to Show Color of 
Title.— -The record of condemnatioit 
proceedings, though defective, may, 
after final judgment therein, be In- 
troduced in evidence in an action of 
ejectment for the purpose of show- 
ing color of title, to be followed by 
proof that the defendant and those 
under whom he claims have been in 
the actual and adversary possession 
of the premises for the period pre- 



scribed by law. It is immaterial that 
neither the plaintiff nor those under 
whom he claims were parties to the 
condemnation proceedings. Knight v. 
Grim, 110 Va. 400, 66 S. E. 42. See 
post, EJECTMENT. 

When Evidence of Junior Claimants 
Possession Outside Interlock Not Ad- 
missible. — If a portion of the land, 
claimed under the older and better 
title, interlocks with a junior grant, 
and there has been actual adverse pos- 
session, for the statutory period, 
within such interlock, it is error to 
admit evidence of the junior claim- 
ant's possession, within the boundaries 
claimed by him, outside of the inter- 
lock. Pardee v. Johnston, 70 W. Va. 
347, 74 S. E. 721. 

Deted Joining Plaintiff with Tide 
Acquired by Adverse Possession. — 

In ejectment, a deed can not properly 
be excluded which joins plaintiff with 
good title acquired by adverse posses- 
sion as against defendant, proved by 
the evidence to have been in the gran- 
tor. McDermitt v. Forbes, 73 W. Va. 
240, 80 S. E. 356. 

VIII54. QUESTIONS OF LAW AND 

FACT. 

The question of what is actual pos- 
session, as well as tfaSe question of its 
continuity and notoriousness, are usu- 
ally questions for the jury; but this is 
not true where there has been no act 
whatever indicating any taking of the 
possession of the land itself. Craig- 
Giles Iron Co. V. Wickline 126 Va. 223, 
101 S. E. 225. 

IX. HOW LOST. 

Although title by adverse possession 
be complete, it will be destroyed by 
the re-entry of the party having the 
paper title into actual possession, and 
holding the same by virtue of the 
paper title for the statutory period. 
Marbury v, Jones, 112 Va. 389, 71 S. 
E. 1124. 



1 12 Affidavits 



XI. PRESERVATION OF RIGHT | making an entry or bringing an action. 

OF ACTION. I Va. Code 1919, sec. 5806. 

Right Not Saved by Claim. — No j The West Virginia statutes contain 

continual or other claim upon or near an exactly similar provision. Barnes 

any land shall preserve any right of Code, W. Va., p. 1044, ch. 104, sec. 2, 

ADVERTISEMENTS.— See post, JUDICIAL SALES; SERVICE OF 
PROCESS; TAXATION. As to advertising scheme, see post, SALES. As 
to contest relating to advertising scheme, see Brenard Mfg. Co. v. Brown, 120 
Va. 757, 92 S. E. 850. 

Advertisements Concerning Venereal Diseases. — Va. Acts 1918, p. 561, Pol- 
lard's Code 1920, p. 533; W. Va. Acts 1919, p. 278. 

Unauthorized Use of Name for Advertising Purposes. — Va. Code 1919, § 5782. 

ADVICE OF COUNSEL.— See post, MALICIOUS PROSECUTION. 
AFFIDAVIT OF DEFENSE.— See post, ASSUMPSIT. 



AFFIDAVITS. 

m. Authority to Administer. 

A. In General. 

B. Clerks of Court. 

C. Judge. 

D. Justices of the Peace. 

E. Notary Public. 

F. Without the State. 

IV. Who May Make. 
V. Formal Requisites. 

B. Authentication. 

D. Venue. 

VI. Amendment. 
Vm. Use in Evidence. 

A. Pendency of Suit and Notice. 
2. Necessity for Notice. 

E. Affidavits as Part of Record. 

CROSS REFERENCES. 

See the title AFFIDAVITS, vol. 1, p. 227, and references there given. In 
addition, see ante, ACCOUNTS AND ACCOUNTING; ACKNOWLEDG- 
MENTS; ADULTERATION; post. AMENDMENTS; ANIMALS; AN- 
SWERS; ASSUMPSIT; ATTACHMEISIT AND GARNISHMENT; AT- 
TORNEY AND CLIENT; BOUNDARIES; CREDITORS' SUITS; CROPS; 
DETINUE AND REPLEVIN; DRAINS AND SEWERS; ELECTIONS; 
EXECUTORS AND ADMINISTRATORS; FIRE INSURANCE; GUARD- 
IAN AND WARD; INSURANCE; JUDGMENTS AND DECREES; JURY; 
LICENSES; LIFE INSURANCE; OYSTERS; PARTNERSHIP; PEN- 
SIONS; PHYSICIANS AND SURGEONS; PILOTS; PLEADING; PRO- 
DUCTION OF DOCUMENTS; PUBLIC LANDS; SET-OFF, RECOUP- 



Affidavits 



113 



MENT AND COUNTERCLAIM; SUMMONS AND PROCESS; SURETY- 
SHIP; TAXATION, and other specific titles. As to affidavit of defense, see 
post, ASSUMPSIT. As to affidavits in attachment, see post, ATTACHMENT 
AND GARNISHMENT. As to affidavit of president of corporation to plea, 
see post, CORPORATIONS. As to affidavit to support mechanics* lien, see 
post, MECHANICS* LIENS. As to affidavit filed in support of motion for 
new trial, see post, NEW TRIALS. As to omission of name of member of 
firai from affidavit, see post, PARTNERSHIP. 



III. AUTHORITY TO ADMINIS- 

TER. 

A. IN GENERAL. 

See post, "Justice of the Peace,** III, 
D; -Notary Public,** III, E; "Without 
the State," III, F; and see Va. Code 
1919, § 274; Barnes Code, ch. 130, §§ 31, 
31a, 32, W. Va. Supp. 1918, § 4887, Acts 
1917. 

Officer of Another State or County. — 
Va. Code, 1919, § 275; Barnes Code ch. 
130, § 33, ch. 51, § 13. 

To Purchaser of Fuel, Provisions, or 
Other Thing.— Va. Acts 1918, p. 266. 

B. CLERKS OF COURT. 

See ante, "In General,** III, A. 

C. JUDGE. 

Barnes Code 1918, ch. 39, § 3a (1); 
Va. Code 1919, § 274. 

D. JUSTICES OF THE PEACE. 

Va. Code 1919, § 274; .Barnes Code, 
ch. 50, § 4. 

Affidavit of Defense— Partition of Per- 
sonalty^Va. Acts 1918, p. 468. 

Search Warrant. — ^Va. Acts 1920, p. 

516. 

E. NOTARY PUBLIC. 

See ante, "In General,** III, A; post, 
"Without the State,*' III. F. 

Being the cashier of a bank does not 
disqualify a notary public from taking 
an affidavit to be used in an attachment 
suit brought to collect a debt due his 
bank. There is no statute forbidding a 
notary public, who is an officer in a bank, 
from taking the affidavit of a person up- 
on a matter in which his bank ij inter- 
ested, and we perceive no good reason 
in law why he should be disqualified 
from doing so. The rule which has been 
held to disqualify a notary public, inter- 
ns 



ested as grantee or beneficiary in a 
deed, from taking and certifying the 
grantor's acknowledgment, does not ap- 
ply here. Taking an acknowledgment to 
a deed or other writing is a quasi judi- 
cial act. First Nat. Bank v, Cootes, 74 
W. Va. 112, 81 S. E. 844. 

F. WITHOUT THE STATE. 

See ant.% "In General," III, A. 

Su£Bciency of Authentication When 
Made out of State. — The certificate of 
the clerk of a court of record of the 
State of Tennessee, appended to an affi- 
davit which verifies a mechanic's lien, 
to the effect that the officer taking said 
affidavit and administering said oath 
was at said time a notary public, duly 
commissioned and qualified as such, 
and that his signature thereto is genu- 
ine, is a sufficient authentication of 
such affidavit, it being judicially known 
that a notary public in the State of Ten- 
nessee is authorized to administer an 
oath. Appalachian Marble Co. v. Ma- 
sonic Temple Ass'n, 79 W. Va. 471, 91 
S. E. 403. 

Authority of Foreign Officer— Authen- 
tication.— An affidavit purporting to 
have been made before a notary of 
another state, to which there is not an- 
nexed a certificate authenticating the 
genuineness of the notary's signature 
and his power to administer oaths, as 
required by Code 1913, Ch. 130, § 31, 
is insufficient to perfect a claim of me- 
chanics' lien. Hill Clutch Co. v. Inde- 
pendent Steel Co., 74 W. Va. 353, 82 S. 
E. 223. 

IV. WHO MAY MAKE. 

See ante, "In General," III, A; "Jus- 
tices of the Peace," III, D. 
Corporations and Agents. — Va. Code, 



114 



Affidavits 



1919, § 276. See also post, CORPORA- 
TIONS; OFFICERS AND AGENTS 
OF PRIVATE CORPORATIONS. 

V. FORMAL REQUISITES. 

B. AUTHENTICATION. 

Sec ante, "In General," III, A; "Jus- 
tices of the Peace," HI, D; "Without 
the State," III, F; post, "Venue," V, D; 
"Amendment," VI. 

Omission of Signature. — "In the ab- 
sence of the signature of any person to 
the jurat, can we say, ^ argued, that 
the omission amounts to a mere irregu- 
larity, cured by the statute? With- 
out being certified as required, how can 
we say the oath was in fact taken? 
Would such a paper support a prosecu- 
tion for perjury or false swearing? Is it 
any oath at all? We think it clear it 
can not be so regarded. The absence of 
the signature of the officer to the jurat 
destroys the evidential quality of the 
affidavit and return, and renders the 
latter, prima facie at least, invalid." 
Wilkinson r. Linkous, 64 W. Va. 205, 
207, 61 S. E. 152. 

D. VENUE. 

If the affidavit in any way indicates 
with reasonable certainty the jurisdic- 
tion of the officers, it is sufficient, though 
wanting that fornlality generally re- 
quired in good pleading showing venue. 
If made in good faith and reasonably 
sufficient, the affidavit should be held 
good. Lewis v, Blankenship, 75 W. Va. 
598, 84 S. E. 500. 

An affidavit which, after the title of 
the case, has the venue, "State of West 
Virginia, Tucker county, to wit," 
sufficiently shows that the notary is a 
notary of Tucker county and adminis- 
tered the oath in that county. Hans- 
ford V. Snyder, 63 W. Va. 198. 59 S. E. 
975. 

An affidavit filed with a declaration, 
pursuant to and in compliance with sec- 
tion 46, chapter 125, West Virginia Code, 
bearing the caption, "State of West 
Virginia, Monroe County, to wit, in the 



circuit court thereof — G. H. Lewis, 
plaintiff;" and concluding with the 
words, "Taken sworn to and subscribed 
to before me this 14th day of September, 
1912 — C. H. Doss, Justice of the Peace, 
Sweet Spring District," sufficiently 
shows the venue of the authentication 
thereof. Lewis v, Blankenship, 75 W. 
Va. 598. 84 S. E. 500. 

VL AMENDMENT. 

Subsequent Correction of Affidavit. — 

"When the affidavit of the officers re- 
lates to a delinquent tax return, which 
the law requires shall be recorded, the 
omission of the affidavit, or of the jurat 
or the signature thereto of the officer, 
renders the return absolutely void, and 
the omission can not be supplied or the 
record subsequently corrected." Wilk- 
inson V, Linkous, 64 W. Va. 205, 208, 
61 S. E. 152. 

VIII. USE IN EVIDENCE. 

A. PENDENCY OF SUIT AND 
NOTICE. 

2. Necessity for Notice. 

An ex parte affidavit offered by one 
party cannot, over the objection of the 
adverse party, be considered by the 
court upon the hearing of a chancery 
cause upon its merits, in the determina- 
tion of the issues raised by the pleadings, 
where there has been no previous con- 
sent that such affidavits may be so con- 
sidered, and no consent to, or waiver of 
notice of, the taking of such affidavit. 
Herold v, Craig, 59 W. Va. 353, 53 S. 
E. 466. 

E. AFFIDAVITS AS PART. OF 
RECORD. 

Affidavits, in no way a part of the rec- 
ord, as to what occurred at the time 
of, or before or after, the entering of a 
final decree, appealed from, for the pur- 
pose of impeaching the same, can not 
be considered by appellate court. Town- 
ley Bros. V. Crickenberger, 64 W. Va. 
379, 63 S. E. 320. 



AFFIRMATION.-xSee post, OATH 

A£Fray. 

See the title AFFRAY, vol. 1, p. 238, and references there given. See. also, 
post, HOMICIDE; Barnes W. Va. Code, p. 1261, ch. 153, §§ 9, 10. 

AFFREIGHTMENT, CONTRACTS OF.— Sec post, CARRIERS. 

AFTER. — The words "after the passage of this act," when used in a statute, 
refer to all future time from the passage of the act. State v, Mathews, 68 W. 
Va. 89, 102, 69 S. E. 644. See post, SINCE; STATUTES. 

AFTER-ACQUIRED PROPERTY.— See post, ASSIGNMENTS; EASE- 
MENTS; MORTGAGES; SALES; WILLS. As to equitable lien upon after- 
acquired property, see Brown v. Ford, 120 Va. 233, 91 S. E. 145, S'ee also post, 
LIENS. 

AFTER BORN CHILDREN.— Sec post, DESCENT AND DISTRIBU- 
TION; WILLS. 

AFTER DISCOVERED EVIDENCE.— See post, CONTINUANCES; 
NEW TRIALS. 

AFTER LOSS— AFTER THE FIRE.— In Hogl v. Aachen Ins. Co., 65 W. 
Va. 437, 438, 64 S. E. 441, it is said: "There is in the case a discussion as to 
difference between policies prescribing a time limit after loss and those fixing 
it after the fire We see no difference." See post, FIRE INSURANCE* 

AFTER THEM.— 5ee Irvin v. Stover, 67 W. Va. 356, 361, 67 S. E. 1119. 

AGENCY. 

I. Deflnitions and Distinctions, ii7. 
n. Creation, Existence and Validity of Agencies, us. 

J^A. In General, 118. 

A. Between Whom Relation May Exist, 118. 

B. Manner of Creating Agencies, 119. 

1. By Express or Implied Contract, 119. 

a. In General, 119. 

b. Form of Contract, 119. 

(1) In General, 119. 

(2) Appointing Agents to Execute Sealed Jnstruir.ents, 119. 

c. Validity and Sufficiency of Contract, 119. 

d. Construction of Contract, 119. 

C. Evidence of Agency, 119. 

1. Presumptions and Burden of Proof, 119. 

2. Admissibility, 120. 

3. Degree and Sufficiency Proof, 121. 

m. Measure and Scope of Agent's Authority, 121. 

A. In General, 121. 

B. Distinction between General and Special Agents, 122. 

C. Duty of Third Persons to Ascertain and . Consider Agent's Author- 

ity, 122. 

D. Implied Powers of Agents, 123. 

115 



116 Agency 

1. In General, 123. 

2. To "Execute Bills and Notes, 124. 

£. Powers of Agents under Particular Authorities, 124* 
Yj. In General, 124. 

1. Authority to Sell, 124. 

a. Authority to Sell Real Estate, 124. 

(1) In General, 124. 
(3) To Make Warrant of Quality, 125. 
a. Authority to Collect, 125. 

F. Question of Fact, 125. 

G. Evidence of Authority, 125. 

IV. Maimer of Executing Authority, i^s. 

A. Manner of Signing, 125. 

VI. Bights, Duties and Liabilities between Principal and 
Agent, 125. 

A. Of Agent to Principal, 125. 

2. Diligence Required of Agents, 125. 

3. Good Faith in Dealing with Principal, 125. 

a. Fiduciary Character of Relation, 125. 

b. Agent to Sell, Purchasing for Himself, 126. 

c. Agent to Buy, Purchasing for Himself, 126. 
g. Dealings between Agent and Principal, 126. 

4. Acting as Agent of Both Buyer and Seller, etc., 127. 
7. Accounting, 127. 

B. Of Principal to Agent, 128. 

1. Compensation, 128. 

2. Reimbursement for Expenses, etc., 128. 

Vn. Bights and Liabilities as to Third Persans, i28. 

A. Liability of Agent to Third Persons, 128. 

1. Private Agents, 128. 
a. On Contract, 128. 

B. Liability of Principal to Third Persons, 130. 

1. On Contract, 130. 

J/^a. In General, 130. 

a. Disclosed Principals, 130. 

b. Undisclosed Principals, 130. 

2. For Torts, 131. 

3. When Declarations or Admissions of Agent Bind Principal, 130. 

4. Notice to Agent as Notice to Principal, 131. 
6. Liability for Unauthorized Acts of Agent, 133. 

C. Liability of Third Persons to Principal, 133. 

Vm. Ratification of Agent's Unauthorized Acts, i33. 
IX. Terniination of Agency, i36. 

J^A. Presumption as to Continuance of Agency, 136. 

A. Mode of Termination, 13«. 

2. Revocation of Agent's Authority, 136. 

B. Effect of Termination, 137. 

X. Actions, 137. 

A. Action by Principal against Agent or Third Person, 137. 



Agency 



117 



1. Action against Agent, 137. 

2. Action against Third Person, 138. 

B. Action by Agent against Third Persons or Principal, 138. 

1. Action Against Third Person, 138. 

2, Action against Principal, 138. 

a. Defenses, 138. 

b. Burden of Proof, 139. 

c. Admissibility of Evidence, 139. 

d. Damages, 139. 

e. Instructions, 139. 

C. Action by Third Persons against Principal, 141. 

1. Parties, 141. 
iy2. Pleading. 141. 

2. Evidence, 142. 

a. Admissibility, 142. 

b. Sufficiency, 142. 

3. Trial, 142. 

D. Action by Third Person against Agent, 143. 

1. Remedies, 143. 

2. Limitation of Actions, 143. 

3. Evidence, 143. 

Xn. Corruptly Influencing Agents, etc., i43. 

CROSS REFERENCES. 

See the title AGENCY, vol. 1, p. 240, and references there given. In addition, 
see ante, AFFIDAVITS; post, AGRICULTURE; ARCHITECTS; AUTO- 
MOBILES; BAILMENTS; BENEFICIAL AND BENEVOLENT ASSO- 
aATIOXS; BILLS, NOTES AND CHECKS; CARRIERS; CONTRACTS; 
DRUMMERS; FIDELITY AND GUARANTY INSURANCE; FIRE IN- 
SURANCE; FOOD; FOREIGN CORPORATIONS; FRAUDS, STATUTE 
OF; HUSBAND AND WIFE; INDEPENDENT CONTRACTORS; IN- 
SURANCE; INTOXICATING LIQUORS; JOINT TENANTS AND TEN- 
ANTS IN COMMON; PARTNERSHIP; PAYMENT; POWERS; PUBLIC 
SERVICE AND CORPORATION COMMISSIONS; RAILROADS; SALES; 
SCHOOLS; STATE; STREETS AND HIGHWAYS; SUMMONS AND 
PROCESS; TRUSTS AND TRUSTEES; WITNESSES; WORKING CON- 
TRACTS. 



L DEFINITIONS AND DISTINC- 
TIONS. 
Agent and Servant Distinguishedd — 

There is a well-defined distinction be- 
tween an agent and a servant. Usually 
an agent represents his principal in the 
formation or discharge of contracts with 
third persons, while a servant performs 
mere operative or mechanical acts under 
the direction and control of the master 
which may result in imposing a lia- 
bility on the master on account of an 
existing obligation resting upon the 
master. Virginia Iron, etc., Co. v, Olde, 
128 Va. 280, 105 S. E. 107. 



In Taylor v, Sutherlin«Meade To- 
bacco Co., 107 Va. 787, 60 S. E. 132, 
the court, in drawing the distinction 
between the relation of principal and 
agent and that of master and servant, 
quotes Mechem on Agency, § 1, as fol- 
lows: "The true distinction is to be 
found in the nature of the undertaking 
and the time and manner of its per- 
formance. Agency properly relates to 
transactions of business with third per- 
sons, and it implies more or less of 
discretion in the agent as to the time 
and manner of his performance. Serv- 
ice, on the other hand, has refer- 



118 



Agency 



ence to actions upon or about things. It 
deals chiefly with manual or mechanical 
execution, in which the servant acts un- 
der the direction and control of the 
master." 

"An agent ia one employed and au- 
thorized to represent and act for an- 
other, and the distinguishing features 
of the agent are his representative 
character and his derivative authority." 
Taylor v. Sutherlin-Meade Tobacco Co., 
107 Va. 787, 790, 60 S. E. 132, citing 
Cutis V. Miller, 73 W. Va. 481, 80 S. E. 
774, Mechem on Agency § 1. 

A special agent is one who is author- 
ized to do one or more specific acts in 
pursuance of particular instructions, or 
within restrictions necessarily implied 
from the act to be done. Bowles v. 
Rice. 107 Va. 51, 57 S. E. 575. 

Officer of Court Agent of Party to 
Action. — When a party to an action 
has the power to command an officer 
of the court and compel obedience to 
his orders, the latter is, for many pur- 
poses, the agent of the former. Young 
17. Edwards, 64 W. Va. 67, 60 S. E. 992. 

Although a promoter ia. not strictly 
an agent of, or a trustee for, a com- 
pany before its creation, the rules of 
principal and agent and of trustee and 
beneficiary have been extended to 
meet such cases, and a promoter of 
such a company is accountable to it 
as if the relation of principal and 
agent, or of trustee and beneficiary 
had actually existed. Jordan v. Annex 
Corp., 109 Va. 625, 64 S. E. 1050. See 
post, CORPORATION; OFFICERS 
AND AGENTS OF PRIVATE COR- 
PORATIONS. 

An employee of a Iwmk, in the per- 
petration of a fraud upon a depositor, 
is not the agent of the bank. Brown 
V, Lynchburg Nat. Bank, 109 Va. 530, 
537, 64 S. E. 950. See post, BANKS 
AND BANKING. 

A doctor employed by a coal com- 
pany to attend its miners and paid by 
the company from a fund created by 
monthly deductions from the earnings 



of each miner, occupies neither the posi- 
tion of agent nor servant of the com- 
pany, but rather that of an independent 
contractor. Virginia Iron, etc., Co. v. 
Olde, 128 Va. 280, 105 S. E. 107. See 
plost, INDEPENDENT CONTRAC- 
TORS; MASTER AND SERVANT. 

The chairman of the board of county 
supervisors is in no sense the agent of 
the board, but a public officer. Leach- 
man V. Board, 124 Va. 616, 98 S. E. 656. 

II. CREATION, EXISTENCE AND 
VALIDITY OF AGENCIES. 

J4A. IN GENERAL. 

Agent to Conduct Mercantile Business. 
— Va. Code 1919, 5 «223. 

Fajrment of a money compensation 
for services is not essential to the ex- 
istence of the relation of principal and 
agent. Pardee v. Crane & Co., 74 W. 
Va. 359, 82 S. E. 340. 

Existence of Relation as to Third 
Persons Only. — One person may be the 
agent of another as to third persons, 
although as between themselves, the 
relation of principal and agent does 
not in fact exist. The contract 
between the parties is not alone to de- 
termine the questions when the rights of 
third persons are concerned, but that is 
to be considered along with all the other 
facts and circumstances given in evi- 
dence which bear upon the question of 
agency. In the case at bar, the evi- 
dence was such as to warrant the 
trial court in giving an instruction to 
that effect, and to support the ver- 
dict of the jury establishing such an 
agency so far as the rights of the plain- 
tiff were affected. Mclntyre v. Smyth, 
108 Va. 736, 62 S. E. 930. 

A son is not, by reason of his kinship, 
the agent of his father in using the lat- 
ter's automobile for his own purposes. 
Cohen v, Meador, 119 Va. 429, 89 S. E. 
876. Sec post, AUTOMOBILES; 
PARENT AND CHILD. 

A. BETWEEN WHOM RELATION 
MAY EXIST. 

See ante, "In General," II, J4A; post. 



Agbncy 



119 



"Manner of Creating Agencies," II, B. 
In addition, see post, HUSBAND AND 
WIFE. 

B. MANNER OF CREATING AGEN- 
CIES. 

1. By Express or Implied Contract 

a. In QieneraL 

, See post, "Evidence of Agency," II, 
C. 

By Contracts — ^To cneate the rela- 
tionship of principal and agent (broker) 
there must be a contract of employ- 
ment, express or implied. Uniontown 
Grocery Co. v, Dawson, 68 W. Va. 332, 
69 S. E. 845. 

Agency may be in4>lied from the con- 
duct of the parties, and the nature and 
circumstances of the particular acts done 
by the principal. Uniontown Grocery 
Co. V. Dawson, 68 W. Va. 332, 69 S. 
E. 845; Cassiday, etc., Lumber Col 
V, Terry, 69 W. Va. 572, 73 S. E. 278. 

b. Form of Contract. 

(1) In General. 

Authority to Sell or Lease Landw — 

Numerous decisions of this and other 
courts unite in holding, that the au- 
thority of an agent to sell or lease land 
need not be in writing. Armstrong v. 
Maryland Coal Co., 67 W. Va. 589, 69 
S. E. 195; Mustard v. Big Creek De- 
velop. Co., 69 W. Va. 713, 716, 72 S. E. 
1021. See post, BROKERS. 

Where the owner of the equitable 
title to land by an executory con- 
tract or title bond, authorizes his vendor, 
to renew a prior lease for oil and gas 
covering the large tract, of which his 
land is a part, he thereby constitutes 
his vendor his agent to contract for 
such lease. Mustard v. Big Creek De- 
velop. Co., 69 W. Va. 713, 72 S. E. 1021. 

(8) Appointing Agents to Execute 
Sealed Instruments. 

"Power can not be confen^ on an 
affent to execute a deed convesring land, 

except by a writing of the same dig- 
nity." Mustard v. Big Creek Develop. 



Co., 69 W. Va. 713, 717, 72 S. E. 1021. 
See post, POWERS. 

c. Validity and Sufficiency of Con- 

tract 

See ante, "Form of Contract," II, B, 
1, b. 

If a written instrument (letters in 
this case) be relied on, in order that 
it may be held to create agency, it 
must also on its face, or when read 
in the light of surrounding circum- 
stances, appear that such was the in- 
tention. Uniontown Grocery Co. v, 
Dawson, 68 W. Va. 332, 69 S. E. 845. 

d. Construction of Contract 

See post, "Rights, Duties and Liabili- 
ties between Principal and Agent," VI. 

Attorney in Fact. — An instrument exe- 
cuted by a mother to her son, William 
C. T. Milliard, concluded as follows: 
"And I do hereby constitute and appoint 
William C. T. Milliard my true and law- 
ful attorney in my name, but at his own 
costs and charges, to take all legal 
measures which may be necessary to 
enfore the stipulations and agreement 
herein contained and to receive the 
moneys due or to grow due thereon 
now in the hands of the sheri£F of Rock- 
ingham county, Virginia." Held: That, 
it was the intention of the mother, by 
the writing in question, to consti- 
tute her son her attorney in fact to rep- 
resent her in the litigation, and not 
to invest him with her interest in the 
proceeds of the sale of her land under 
the order of court. Milliard v. Union 
Trust Co., 123 Va. 724, 97 S. E. 335. 

C. EVIDENCE OF AGENCY. 
See ante, "In General," II. J4A. 

1. Presumptions and Burden of Proof. 

Necessity of Proof.— In order for the 
agent to obtain rights himself, or es- 
tablish liabilities to others, against his 
principal, the fact of his appointment 
must be made to appear, by an instru- 
ment in writing, by spoken words, or 
it may be implied from the conduct of 
the parties, and the nature and cir- 



120 



Agency 



cumstances of the particular acts done 
by the principal. Uniontown Grocery 
Co. V. Dawspn, 68 W. Va. 332, 69 S. E. 
845. 

Proof of an express contract of 
agency is not essential to the estab- 
lishment of the relation. It may be 
inferred from facts and circumstances, 
including conduct. Cassiday, etc., Lum- 
ber Co. V. Terry, 69 W. Va. 572, 73 S. 
E. 278. 

Agency may but need not be proved 
by direct and positive evidence; it may 
be shown by the habit and course of 
dealing between the parties, evincing 
either an original appointment or a 
subsequent and continued ratification 
of the acts done. Fielder v. Camp 
Constr. Co., 63 W. Va. 459, 60 S. E. 
402. 

Presumptions.— r"Where a person as- 
sumes to act as agent for another, it 
will be presumed as against him 
that the relation existed, so as to 
cast upon him the burden of proving 
that it did not exist, if he afterwards 
takes such position." Clark & Skyles 
on Agency, § 63. Siers v, Wiseman, 58 
W. Va. 340, 52 S. E. 460. 

Relationship alone does not make a 
father answerable f6r the acts of his 
minor child. The liability in such cases 
results, if at all, from the fact of agency, 
and this fact must be proved. No pre- 
sumption of agency arises merely from 
the domestic relationship. Blair v. 
Broadwater, 121 Va. 301, 306, 93 S. E. 
632, following Cohen v. Meador, 119 Va. 
429, 89 S. E. 876. See post, PARENT 
AND CHILD. 

Inference of Agency«— Raidfication 
of Similar Acts. — Agency to do a par- 
ticular act may be inferred from the 
adoption and ratification, by the prin- 
cipal, of acts of like kind performed 
for him by the agent. Lowrance v, 
Johnson, 75 W. Va. 784, 84 S. E. 937. 
See post, "Ratification of Agent's 
Unauthorized Acts," VIII. 

Rebuttal. — When a prima facie case 



in connection between the alleged 
principal and agent has been shown. 
Although the evidence of the agency 
may be slight the burden is cast upon 
the principal to rebut it. Ramsay v. 
Harrison, 119 Va. 682, 89 S. E. 977. 

2. Admissibility. 

Adrndssions and Declarations of 

Agent.-»Admissions and declarations 
of a person claiming to be an agent 
of another are not admissible as evi- 
dence to prove such agency (to the 
prejudice of the principal). State v. 
Tygart Valley Brewing Co., 74 W. Va. 
232, 81 S. E. 974. 

Agency may be established in 
favor of the principal by the admis- 
sions of the agent, or by proof of acts 
of the , alleged agent, from which no 
inference, other than that of the rela- 
tionship of principal and agent, can be 
consistently deduced. Siers v. Wise- 
man, 58 W. Va. 340, 52 S. E. .460. 

While the declarations of an alleged 
agent are inadmissible to prove agency 
(to the prejudice of the principal), if 
the agency be otherwise prima facie 
proved, they become admissible in cor- 
roboration. Lysle Milling Co. v. Holt 
& Co., 122 Va. 565, 95 S. E. 414. 

Parol Evidence. — When it is possible 
to ascertain the essential terms of a con- 
tract from the writings of the parties, 
parol evidence is admissible to apply the 
contract to the parties, and show the 
agency of one of the parties signing the 
contract, memorandum, or note. Rad- 
ford Water Power Co. v, Dunlap, 128 
Va. 658, 105 S. E. 257. 

Agenft as Witness. — An alleged 
agent may be permitted to testify to 
his agency. State v. Tygart Valley 
Brewing Co., 74 W. Va. 232, 235, 81 S. 
E. 974. 

On an issue as to the authority of an 
agent, he is a competent witness and 
may testify to acts done on behalf of 
his principal and the latter's knowledge 
thereof, in favor of a third person, even 



Agency 



121 



though such third person is not shown 
to have had knowledge thereof. Union 
Bank, etc., Co. r. Long Pole Lumber 
Co., 70 W. Va. 558, 74 S. E. 674. 

3. Degree and Sufficiency Proof. 

See ante, "Presumptions and Burden 
of Proof," II, C, 1. 

The mere fact that one assumes to 
act as agent of another is not alone 
sufficient to show such agency; but if 
the agent's acts are so open, apparent 
and notorious that it is evident that 
they must have been known to the 
principal they are evidence of agency. 
Circumstances may establish it, with- 
out proof of express appointment. 
Black Lick Lumber Co. v. Camp Constr. 
Co., 63 W. Va. 477, 60 S. E. 409. 

Paying Taxes. — Agency of one per- 
son for the purpose of paying taxes 
on the land of another is sufficiently 
shown by proof of his having paid the 
taxes on the land for a long period of 
time, without any claim of title or right 
in or to it in himself, allowed it to be- 
come delinquent for one year, purchased 
at the sale for such delinquency, failed 
to take a deed under such purchase, con- 
tinued to pay taxes on the land in "the 
name of the owner for another long 
period of time and until his death, and 
failed to take^ possession thereof at 
any time. Siers v, Wiseman, 58 W. Va. 
340, 52 S. E. 460. 

Abstract of Title Made by Attorney 
£nipk>yed by Borrower though Sug- 
gested by Lender. — The attorney was 
held the agent of the borrower. Kirkpat- 
rick V. Warden, 118 Va. 382, 87 S. E. 
561. 

Suit to Hold Agent as Constructive 
Trustee of Land— Proof Required.— 

Where it is sought to establish that 
an agent to purchase land is a con- 
structive trustee of his principal, the 
relationship of principal and agent 
should be established by clear and 
convincing proof. Matney v. Yates, 
121 Va. 506, 93 S. E. 694, 



in. MEASURE AND SCOPE OF 
AGENT'S AUTHORITY. 

A. IN GENERAL. 

See post, "Duty of Third Persons to 
Ascertain and Consider Agent's Author- 
ity," III, C. 

Necessity for Being within Apparent 
Authority. — Whether or not a contract 
made by an agent for his principal, 
which was not expressly authorized nor 
subsequently ratified by the principal is 
binding on the principal is dependent 
upon whether or not it was within the 
apparent scope of the authority of the 
agent to make such contract. Raven 
Red Ash Coal Co. v. Herron, 114 Va. 
103, 75 S. E. 752. 

On- the trial of an issue as to whether 
an act done by an agent was within 
the scope of his actual, or, within the 
meaning of the law, apparent author- 
ity, if the act is beyond the agent's 
authority, the relation of principal and 
agent does not exist as to it, and the 
rules applicable to such relationship 
do not apply. Thompson v. Laboring- 
man's Mercantile, etc., Co., 60 W. Va. 
42, 53 S. E. 908. 

Naked power to do acts for another 
negatives all authority on the part of 
the agent to act in reference to the 
principal's business for the benefit of 
any one other than the principal. Bank 
V, Ohio Valley Furniture Co., 57 W. 
Va. 625, 50 S. E. 880. 

A general agent has implied power to 
bind his principal by such contracts and * 
modifications thereof as are reasonably 
necessary in conducting the business of 
principal. Producers Coal Co. v. Mif- 
flin Coal Mini Co., 82 W. Va. 311, 95 
S. E. 948. 

Special Agent. — The powers of a spe- 
cial agent are to be strictly construed. 
He possesses no implied authority be- 
yond what is indispensable to the exer- 
cise of the power expressly conferred, 
and must keep within the limits of his 
commission. All persons deal with such 
an agent at their own risk as to the 



122 



Agency 



extent of his powers. Bowles v. Rice, 
107 Va. 51, 57 S. E. 675. 

A power to a special agent to sell 
for cash at any time within thirty days, 
does not authorize a sale on credit, 
even though the credit does not extend 
beyond the thirty days. A mere power 
to sell, without more, implies a cash 
sale. Bowles v. Rice, 107 Va. 51, 57, 
S. E. 575. 

The terms of a power of attorney to 
a special agent, expressly prescribing 
a cash sale, must be rigidly observed. 
Bowles V. Rice, 107 Va. 61, 53, 57 S. 
E. 575. 

B. DISTINCTION BETWEEN GEN- 

ERAL AND SPECIAL AGENTS. 

See ante, "In General," III, A; post, 
"Duty of Third Persons to Ascertain 
and Consider Agent's Authority," III, 
C. 

C. DUTY OF THIRD PERSONS TO 

ASCERTAIN AND CONSIDER 
AGENT'S AUTHORITY. 

See post, "Liability of Third Persons 
to Principal," VII, C. 

Where a person deals with an agent 
it is his duty to ascertain the extent 
of his agency. He deals with him at 
his own risk. The law presumes him 
to know the extent of the agent's 
power, and if the agent exceeds his 
authority, the contract will not bind 
the principal, but only the agent. Cobb 
V. Glenn Boom, etc., Co., 57 W. Va. 49, 
49 S. E. 1005; Uniontown Grocery Co. 
. V. Dawson, 68 W. Va. 332, 69 S. E. 845; 
Howell V. McCarty, 77 W. Va. 696, 88 
S. E. 181, 183; Toledo Scale Co. v. 
Bailey, 78 W. Va. 797, 90 S. E. 345; 
Smith V. Board, 76 W. Va. 239, 85 S. 
E. 513. 

General Agent.— "It is a general rule 
of law that a person dealing with an 
agent must take knowledge of the extent 
of the agent's authority. But this rule 
is qualified by another, which is also 
general, and that is, that a general 
agent having authority to transact 
certain business for his principal has 



also the implied power to do what is 
customary and necessary in the exer- 
cise of his general powers." Fruit 
Dispatch Co. v, Ellis, 75 W. Va. 52. 83 
S. E. 187. 

Apparent Authority in Conflict with 
Real Authority.— While it is well settled 
that everyone who deals with an agent 
does so at his hazard, and is bound, at 
his peril, to take notice of the extent of, 
and the limitations upon, the authority 
of the agent, it is equally well settled 
that the principal is bound to the extent 
that he holds another out as having au- 
thority to act on his behalf. Southern 
Amusement Co. v. Ferrell- Bledsoe Fur- 
niture Co., 125 Va. 429, 99 S. E. 716; 
Lysle Milling Co. v. Holt & Co., 122 
Va. 565, 95 S. E. 414. 

Apparent Authority and Secret In- ^ 
Btructions. — "Secret instructions to an 
agent, inconsistent with his apparent 
authority, are not binding upon third 
parties dealing with him. Union Bank, 
etc., Co. V, Long Pole Lumber Co., 70 
W. Va. 558, 74 S. E. 674; Bank r. Ohio 
Valley Furniture Co., 57 W. Va. 625, 50 
S. E. 880; Rohrbough v. United- States 
Exp. Co., 50 W. Va. 148, 40 S. E. 398; 
Clark V, Gordon, 35 W. Va. 735, 14 S. E. 
255; DeWitt Shoe Co. v, Adkins, 83 W. 
Va. 267, 269, 98 S. E. 209; Lysle Milling 
Co. V. Holt, & Co., 122 Va. 565, 95 S. 
E. 414; Stock & Sons v. Owen, 129 Va. 
256, 105 S. E. 587. 

The apparent authority, so far as third 
persons are concerned, is the real au- 
thority, and when a third person has 
ascertained the apparent authority with 
which the principal has clothed the 
agent, he is under no obligation to in- 
quire into the agent's actual authority. 
Lyl«e Milling Co. v. Holt & Co., 122 Va. 
565, 95 S. E. 414; Fruit Dispatch Co. 
V. Ellis, 75 W. Va. 52, 83 S. E. 187. 

Written Authority.— It is well settled 
that a party dealing with an agent act- 
ing under a written authority must 
take notice of the extent and limits of 
that authority. He is to be regarded 
as dealing with the power before him; 



Agency 



123 



and he must at his peril observe that 
the act done by the agent is legally 
identical with the act authorized by the 
power. Bowles v. Rice, 107 Va. 51, 53, 
57 S. E. 575; Finch v. Causey, 107 Va. 
124. 57 S. E. 562. 

Special Agency or CircumBtances 
Putting on Inquiry. — "It is a generally 
recognized rule of law that 'every per- 
son who undertakes to deal with an 
alleged agent is, by the mere fact of 
the agency, put upon inquiry, and 
must discover at his peril that it is in 
its nature and extent sufficient to per- 
mit the agent to do the proposed act, 
and that its -source can be traced to 
the will of the alleged principal, par- 
ticularly where he is dealing with an 
agent whose authority he knows to be 
special, or where it is his fir«t trans- 
action with the agent, or the circum- 
stances connected with the agency 
are such as should put him on in- 
quiry, as where it appears from the 
circumstances of the particular busi- 
ness that the interests of the agent 
and principal are necessarily adverse, 
or the authority is of an unusual, im- 
probable or extraordinary nature. 
Such a person is to be regarded as 
dealing with the power before him, 
and must at his peril observe that the 
act done by the agent is legally iden- 
tical with the act authorized by the 
power.' 2 C. J: 562; Bank v. Ohio 
Valley Furniture Co., 57 W. Va. 625, 50 
S. E. 880;" Howell v. McCarty, 77 W. 
Va. 695, 88 S. E. 181, 183. See also 
Smith V. Board, 76 W. Va. 239, 85 S. 
E. 513. 

A purchaser who has received a 
printed copy of comditionB governing 
sales, before making his purchase by 
agents, is • chargeable with notice 
thereof. His ignorance of the English 
language is not a legal excuse for his 
failure to inform himself respecting 
the contents of the writing. Fruit Dis- 
patch Co. V. Ellis, 75 W. Va. 52, 83 S. 
E. 187. 

Authority for Benefit of 



Every agency is subject to the legal 
limitation, that it cannot be used for 
the benefit of the agent himself or any 
person other than the principal, in the 
absence of an agreement that it may 
be so used; and, as this is matter of law 
and not of fact, all persons must take 
notice of it. Bank v. Ohio Valley Fur- 
niture Co., 57 W. Va. 625, 50 S. E. 880. 

Authority of Agent as to Negotiable 
Paper.F— A bank discounting negotiable 
paper, with knowledge that the person 
from whom it is taken holds it as agent 
only, is bound to a«scertain the extent 
of the authority of the agent; but, in 
the absence of knowledge of any limi- 
tation upon the authority apparently 
conferred by the principal, it may rely 
upon such apparent authority. Bank v. 
Ohio Valley Furniture Co., 57 W. Va. 
625, 50 S. E. 880. See post, BANKS 
AND BANKING; BILLB, NOTES 
AND CHECKS. 

Same— Endorsed in Blank. — Absolute 
ownerhsip of a thing and agency 
respecting it in the same person are 
incompatible, the latter being merged 
in the former. Hence, a negotiable 
note in the hands of an agent, indorsed 
in blank by the principal, cannot be 
regarded by a stranger, having notice 
of the agency, as both prima facie proof 
of title in the agent and a power of at- 
torney, conferring upon the agent all the 
power and authority that are incident 
to ownership, but he may deal with 
the agent as such and rely upon the 
note as conferring apparent authority to 
sell it and receive payment on behalf 
of the principal. Bank v, Ohio Valley 
Furniture Co., 57 W. Va. 625, 50 S. E. 
880. See post, BILLS, NOTES AND 
CHECKS. 

D. IMPLIED POWERS OF 
AGENTS. 

See post, "Powers of Agents under 
Particular Authorities," III, E. 

1. In General 

Authority vested in an agent to ac- 
complish stated results, for and on be- 



124 



Agency 



half of his principal, includes by im- 
plication power to do whatever is rea- 
sonably necessary to the effectuation 
thereof, in the usual and customary 
way. Channell Bros, v. West Virginia 
Pulp, etc., Co., 77 W. Va. 494. 87 S. 
E. 876. 

Supplies Furnished to Contractor. — 
An agent who has authority to conduct 
a business of which the making of 
working contracts is an incident, has 
implied power to make an original 
promise to a stranger to pay for sup- 
plies furnished by him to contractors 
for the work, as a means of enabling 
them to perform their contracts. 
Channell Bros. v. West Virginia Pulp, 
etc., Co., 77 W. Va. 494, 87 S. E. 
876. 

The superintendent of a coal mining 
operation in charge of the work impliedly 
has authority to employ and discharge 
workmen and to make contracts neces- 
sary to properly carry on the business 
of mining coal intrusted to him; but 
without specific authority he has no 
implied authority to make a contract to 
extend beyond a reasonable time, and 
necessary to the successful operation of 
the mine by him. Rua v, Bowyer 
Smokeless Coal Co., 84 W. Va. 47, 99 
S. E. 213. 

2. To Execute Bills and Notes. 

See post, BILLS, NOTES AND 
CHECKS. 

E. POWERS OF AGENTS UNDER 
PARTICULAR AUTHORITIES. 

See ante, "Implied Powers of Agents," 
III, D. 

%. In general 

To Conduct Mercantile Business^— 
Va. Code, 1919, § 5223. 

Marginal Release of Trust Deed 
under § 8498, Va. Code 1904 (§ 
6456 Va. Code 1919) .^A broker, 
who negotiated a loan secured- by 
deed of trust and who received 
payment in full of the note evi- 
dencing the same but paid only part to 



his principal, and who was not in pos- 
session of the note secured is not such 
an agent as can bind his principal by a 
marginal release under § 2498, Va. Code 
1904 (§ 6456 Va. Code 1919), and such 
release can not affect the lien of the 
creditor whose money he loaned. Brook- 
ing V. Nolde, 11 Va. L. Reg. 217. See 
post, BROKERS. 

Authority to an agent to procure a 
lease of ground carries implied power 
to agree with the landowner upon the 
terms of the lease. Board v, Harvey, 
70 W. Va. 480, 74 S. E. 507. 

1. Authority to Sell. 

a. Authority to Sell Real Estate. 

See post, BROKERS. 

(1) In General. 

State Land-— Va. Code 1919, §§ 2537, 
2540, 2541. 

b. Authority to Sell Personalty. 

(1) In GeneraL 

See ante, "Duty of Third Persons to 
Ascertain and Consider Agent's Au- 
thority," III, C. 

"An agent has implied authority to fix 
the price and terms of sale and agree 
upon such incidental matters as the time 
and place of delivery, provided he does 
not go beyond what is reasonable and 
usual, in the stipulations he makes re- 
specting such things, and his princi- 
pal is bound by what he does, within 
these limitations, even though he acts 
without authority, if the person who 
deals with him is not cognizant of his 
want of authority. A stipulation in a 
contract of sale of personal property, 
binding the principal to take back the 
property, if it proves to be unsatisfac- 
tory is held to be usual and reasonable, 
and therefore within the agent's appar- 
ent authority." DeWitt Shoe Co. v. 
Adkins, 83 W. Va. 267, 269, 98 S. E. 
209. 

Branch Office for Sale of Company's 
Produces. — If, in the instant case, the 
branch office of defendant be treated as a 
mere agency with limited authority. 



Agency 



125 



under the facts of the case, the apparent 
authority of the agent was its real au- 
thority. Plaintiffs vere not bound by 
any secret instructions or restrictions 
given to or imposed upon the branch 
office of which they had no notice. Stock 
& Sons V, Owen, 129 Va. 256, 105 S. E. 
587. 

Place of Delivery. — The general power 
to sell goods will, if not restricted carry 
with it the implied power to contract 
respecting the place of delivery. But 
notwithstanding which implied • author- 
ity, the principal may limit his agent in 
the exercise thereof, and thereby re- 
lieve himself from liabilities; provid- 
ing those dealing with the agent have 
knowledge thereof. Fruit Dispatch Co. 
V. Ellis, 75 W. Va. 52, 83 S. E. 187. 

An agent authorized to sell fruit in 
car load lots on certain prescribed 
conditions only, one of which is that 
all deliveries shall be made f. o. b. cars 
at the seaboard, can not bind his prin- 
cipal by contracting with a buyer, who 
has knowledge of the conditions, to 
deliver elsewhere. Fruit Dispatch Co. 
V. Ellis, 75 W. Va. 52, 83 S. E. 187. 

Pledge of Principal's Goods for 
Agent's Debt — An agent with power 
to sell has no power to bind his prin- 
cipal either by pledging or selling the 
principal's goods as security for, or in 
discharge of, his own debt. Broad St. 
Bank v. Baker Motor Vehicle Co., 119 
Va. 26, 89 S. E. 110. 

(3) To Make Warranty of Quality. 

See ante, "In General," III, E, 1, b, 
(1). 

2. Authority to Collect. 
See post. PAYMENT. 

F. QUESTION IN FACT. 

Whether or not a contract made by 
an agent for his principal, which was 
not expressly authorized nor subse- 
quently ratified by the principal is 
binding on the principal, is dependent 
upon whether or not it was within the 
apparent scope of the authority of the 



agent to make such contract, and 
where the evidence on this subject is 
conflicting it is a question of fact to 
be determined by the jury, und-er 
proper instructions from the court. 
Raven Red Ash Coal Co. v, Herron, 
114 Va. 103, 75 S. E. 752. 

G. EVIDENCE OF AUTHORITY. 

See ante, "Evidence of Agency," 
II, C. 

IV. MANNER OF EXECUTING AU- 
THORITY. 

A. MANNER OF SIGNING. 

"Numerous decisions of this and other 
courts unite in holding, that the authority 
of an agent to sell or lease land need not 
be in writing, and that the agent may 
bind his principal, either by signing 
his own name or that of the prin- 
cipal." Mustard v. Big Creek Develop. 
Co., 69 W. Va. 713, 716, 72 S. E. 1021. 

VI. RIGHTS, DUTIES AND LIABIL- 
ITIES BETWEEN PRINCI- 
PAL AND AGENT. 

A. OF AGENT TO PRINCIPAL. 

2. Diligence Required of Agents. 

Money Lost.— Va. Code 1919, g 5406; 
Barnes Code ch. 119, § 10. 

Liability of Gratuitous Agent— 
An agent or a bailee, a^rting with- 
out compensation and solely for the 
accommodation of the principal or 
bailor, is liable only for gross neglect. 
The general rule held applicable to a 
case, where there was nothing in the 
evidence to remove the defendant's 
alleged agency from the general rule 
and bring it within the qualification 
thereof relating to agents who hold 
themselves out as possessing special 
and peculiar skill in the subject of the 
agency. Yates v. Ley, 121 Va. 265, 92 
S. E. 837. See post, BAILMENTS. 

3. Good Faith in Dealing with Prin- 

cipal. 

a. Fiduciary Character of Relation. 
See post, "Accounting," VI, A, 7. 
Secret Profits or Advantages. — ^An 



126 



Agency 



agent is not permitted to hold» 
against his principal, the fruits of the 
exercise of his representative powers. 
Pardee v. Crane & Co., 74 W. Va. 369, 
S2 S. E. 340; Heckscher v, Blanton, 111 
Va. 648, 666, 69 S. E. 1045. 

In the conduct of his principal's busi- 
ness an agent is held to -the utmost good 
faith, and will not be allowed to use his 
principal's property for his own advan- 
tage, or to drive secret profits or 
advantages to himself by reason of the 
relation of principal and agent existing 
between him and his principal.. Suther- 
land V, Guthrie, 86 W. Va. 208, 103 S. E. 
298. 

Same — Contract Voidable. — If an 
agent, in dealing with his principal about 
the subject matter of the agency, obtains 
an advantage by the suppression of the 
information, concerning the same, ac- 
quired by means of the agency, or by 
misrepresentation, his contract is void« 
able. Thorne v. Brown, 63 W. Va. 603, 
60 S. E. 614. 

Profits Not Resulting from Agency. — 
It is not strictly true that all profits 
made by agents or trustees, belong to 
their principals, but only such profits 
as are thereby diverted from, and there- 
fore made out of, funds belonging to 
their principals. They can not keep 
as their own what might rightly be- 
long to their principals, but in order 
for such results to follow, the agency 
must be the proximate or direct, not 
the remote or indirect, cause of the 
profit — i, e., the profit must be trace- 
able to the agency as its efficient cause, 
and not as its mere incidental occasion. 
Heckscher v, Blanton, 111 Va. 648, 659, 
69 S. E. 1045. 

b. Agent to SeU, Purchasing for Him- 
self. 

See post, BROKERS; FACTORS 
AND COMMISSION MERCHANTS. 

"An agent cannot purchase his princi- 
pal's property at his own sale thereof." 
Catlett V, Bloyd, 83 W. Va. 776, 781, 99 
S. E. 81. 



c Agent to Buy» Purchasing for Him- 
self. 

See post, BROKERS. 

Agent as Trustee. — An agent may not 
purchase land in his own name for the 
benefit of his principal and then refuse to 
convey the same in accordance with 
his contract, but in such case will be 
held as a constructive trustee. Mat- 
ney v. Yates, 121 Va. 506, 93 S. E. 694. 
See post, TRUSTS AND TRUSTEE. 

Where the principal has a present in- 
terest in the land, and only employed 
the agent to purchase an adverse or out- 
standing title for the purpose of bolster- 
ing up or protecting the principal's own 
title, irrespective of whether the out- 
standing title was good or bad, the a^ent 
has been held a constructive trustee 
when he purchased the title in his own 
name, paying therefor with his own 
money. Matney v, Yates, 121 Va. 506, 
93 S. E. 694. 

g. Dealings between Agent and Princi- 
pal. 

"Because of possible abuses of the 
confidence and trust reposed in the 
agent, and of his commanding influence 
over the principal, and of the natural 
conflict of duty and interest in dealings 
between the principal and the agent, 
the law views with suspicion, and 
scrutinizes closely, all dealings between 
them in the subject matter of the agency^ 
in order to see that the agent has dealt 
with the utmost good faith and fairness, 
and that he has given the principal the 
benefit of all his knowledge and skill, 
and if it appears that the agent has been 
guilty of any concealment or unfairness, 
or if he has taken any advantage of his 
confidential relation,, thf transaction 
will not be allowed to stand." Sperry 
V, Sperry, 80 W. Va. 142, 154, 92 S. E. 
574. 

The general rule is that an agent is 
not permitted to enter into any trans- 
action with his principal on his own be- 
half respecting the subject matter of the 
agency, unless he acts with entire good 



Agbncy 



127 



faith, without any undue influence or 
imposition, and makes a full disclosure 
of all the facts and circumstances at* 
tending the transaction. Sperry v, 
Spcrry, 80 W. Va. 142, 92 S. E. 574. 

If an agent purchases the property 
of his principal without making such 
disclosure and acting in good faith, the 
pnncipal may have the sale set aside, 
and compel the agent to reconvey the 
property to him upon repayment of the 
purchase money, or so much as has been 
paid, and account for the rents and prof- 
its received by him; and where the 
principal is infirm or of doubtful bCisi- 
ness capacity, very slight circumstances 
will suffice to cause the court to set 
aside the dealings between prineipal and 
agent. Sperry v. Sperry, 80 W. Va. 142, 
92 S. E. 574. 

1 Acting as Agent of Both Buyer and 
Seller, etc 

See post, BROKERS. 

The law does not inhibit agency for 
both parties to a contract. Cassidy, 
etc.. Lumber Co. v. Terry, 69 W. Va. 
572, 73 S. E. 278; Pardee v. Crane & 
Co., 74 W. Va. 359, 371, 82 S. E. 340. 

Where Interest of Parties Are An- 
tagonistic.— "The policy of the law 
does not permit an agent to act for 
two principals in relation to a mat- 
ter wherein their interests are antag- 
onistic, without the assent of both 
with full knowledge of all that af- 
fects their respective interests. A 
principal is entitled to his agent's 
best skill and judgment in the per- 
formance of his duties, and he can 
not render such service to two prin- 
cipals whose interests conflict. That 
a man can not serve two masters, is 
a principal as true in law as it is 
in morals." Guthrie v. Huntington 
Chair Co., 71 W. Va. 383, 385, 76 S. 
E. 795. 

An agent representing both parties 
to a transaction, with their knowledge 
and consent, can not by contract with 
one of them, without the consent of 



the other, acquire an interest in the 
subject-matter of the agency, to the 
detriment of the non-consenting prin- 
cipal. Pardee v. Crane & Co., 74 W. 
Va. 359, 82 S. E. 340. 

If an agent acts in a dual capacity, 
without the knowledge or consent of the 
parties for whom he is acting, his acts 
are voidable at the election of either of 
the parties upon discovery of such 
double agency, without proof that the 
party disaffirming the acts has been in« 
jured thereby. Truslow v. Parkers- 
burg Bridge, etc., R. Co., 61 W. Va. 628, 
57 S. E. 51; Guthrie v. Huntington Chair 
Co., 71 W. Va. 383, 76 S. E. 795. 

False Representationsw— Where the 
purchaser of real estate is induced by 
the false representations of one whom 
he had employed as his agent to nego- 
tiate the purchase, but who was, without 
his knowledge, the paid agent of the 
vendor to make the sale, then the ven- 
dor is as much bound by the representa- 
tions made by such agent as if they had 
been made by himself. It is immaterial 
that the agent was himself honestly de- 
ceived by the vendor. Cerriglio v, Pettit, 
113 Va. 533, 75 S. E. 303. 

An agent to sdl land may, with pro- 
priety, transmit to his principal for 
his acceptance or rejection the oflFer of a 
proposed purchaser. This is not act- 
ing as agent for both parties in the 
purchase and sale of the land. Croghan 
V. Worthington Hdw. Co., 115 Va. 497, 
79 S. E. 1039. 

7. Accounting. 

See post, "Action by Principal against 
Agent or Third Person," X, A. In 
addition, see ante, ACCOUNTS AND 
ACCOUNTING. 

A bill for an accounting filed by a 
principal against an agent whose duty 
it is to keep and render accounts to the 
plaintiff, alleging failure to keep and 
render correct accounts of money com- 
ing into his hands, or becoming due from 
him, and wrongful conduct on his part 
rendering it difficult or impossible for 



128 



Agency 



the plaintiff to ascertain the true state 

of the account, sets up a good cause 

of action cognizable in equity. Sperry v. 

Premier Pocahontas Collieries Co., 87 

W. Va. 223, 104 S. E. 486. See post, 

EQUITY. 

B. OF PRINCIPAL TO AGENT. 

1. Compensation. 

See post, "Action by Agent against 
Third Persons or Principal," X, B. 

Implied Agency. — To entitle an agent 
to recover for services rendered, it is 
not necessary to show an express re- 
quest a request may be implied from 
all the facts and circumstances of the 
case. Ice v. Maxwell, 61 W. Va. 9, 55 
S. E. 899. 

Ratification of Acts. — If a person acts 
as agent without authority, and his acts 
are ratified, he is entitled to compensa- 
tion the same as though he had been 
duly authorized. Ice v. Maxwell, 61 
W. Va. 9, 55 S. E. 899. 

State's Agents. — The same rule, as to 
the agent's compensation, applies to 
agents appointed by a state as to those 
appointed by natural persons. Green 
V, Marye, 112 Va. 352, 71 S. E. 555. 

A principal whose agent employs a 
8u1>agent is liable for the compensation 
of such subagent if the employment is 
authorized and ratified on the part of 
the principal by his adopting the acts 
of the subagent. Fisher v, Berwind, 64 
W. Va. 304, 61 S. E. 910. 

Necessity for Performance. — Where 
an agent assumes to do a specified act, 
he has no right to compensation there- 
for, as a general rule, until the specified 
act has been substantially performed. 
Green v, Marye, 112 Va. 352, 71 S. E. 
555. 

Commissions. — Principal's attempt to 
collect notes received by his agent for 
fertilizer was not a breach of the agency 
contract entitling the agent to commis- 
sions on the sales of the fertilizer. Ober 
& Sons Co. V. Smith, 122 Va. 311, 94 S. 
E. 787. 

Same— Sales Made fay Principal — 
Under a proper construction of 



the contract irt |suit, the agent 
had the right to sell within cer- 
tain specified territory, fifty per 
cent, of the total output of commer- 
cial coal mined by his principal, and 
if he made the sale, or if the principal 
sold any part of said fifty per cent, in 
said territory, the agent was entitled to a 
stipulated commission, but, the con- 
tract being silent as to any sales in 
excess of said fifty per cent, within said 
territory, the agent is not entitled to 
commission on sales made by the prin- 
cipal in excess of fifty per cent, within 
said territory. He was allowed, un- 
der conditions, to sell in excess of the 
fifty per cent, and if he made 
such sales he was entitled to the com- 
mission thereon, but not upon such 
sales made by the principal within said 
territory. Davy Pocahonas Coal Co. v. 
Kaylor, 118 Va. 296, 87 S. E. 549. 

Right to Bonus. — Because of his fail- 
ure to collect for the extra amount of 
fertilizer sold the agent in question was 
not entitled to a bonus. Ober & Sons 
Co. V. Smith, 122 Va. sil, 194 S. E. 
787. 

An agent guilty of bad faith to his 
principal forfeits all compensation for 
his services. Harman v. Moss, 121 Va. 
399, 93 S. E. 609. 
2. Reimbursement for Expenses, etc. 

Advancements. — In the absence of 
an express agreement with his 
principal to the contrary, an agent's 
advancements of money for his prin- 
cipal's benefit, in the accomplishment 
of the purposes of the agency, 
are items, factors or elements in the 
amount between them, not loans or debts 
by express contract. Flanagan v, Flana- 
gan Coal Co., 77 W. Va. 778, 88 S. E. 
400. 

VIL RIGHTS AND LIABILITIES 
AS TO THIRD PERSONS. 

A. LIABILITY OF AGENT TO 
THIRD PERSONS. 

1. Private Agents, 
a. On Contract. 
Disclosed Principal.— The agent of a 



Agency 



129 



disclosed principal is not liable in dam- 
ages for the breach of a contract made 
by him on behalf of his principal, unless 
it be shown that he acted beyond the 
scope of his* authority. Hoon v, Hy- 
man, 87 W. Va. 659, 105 S. E. 925; 
Hurricane Milling Co. v, Stell, etc., Co., 
84 W. Va. 376, 379, 99 S. E. 490, citing 
Johnson v. Welch, 42 W. Va. 18, 24 S. 
E. 585. 

An agent of a disclosed principal may 
bind both himself and the principal. 
Lutz V. Williams, 79 W. Va. 609, 91 S. 
£. 460, 462. 

An agent of a disclosed and known 
principal, conducting a checkilhg ac- 
count in a bank, in his own name, 
creating an overdraft therein, and exe- 
cuting his own checks on another 
bank to make the overdraft good, 
makes himself individually liable to 
the bank. Lutz v, Williams, 79 W. 
Va. 609, 91 S. E. 460. 

In such case, the doctrine of dis- 
charge of the agent by election to 
hold the principal for the debt does 
not apply, and .subsequent acceptance 
by the bank of notes of the principal 
for the debt and collateral security 
therefor does not release the agent. 
Lutz V, Williams, 79 W. Va. 609, 91 
S. E. 460. 

Undisclosed PrindpaL — One who 
performs services at the request of an 
agent, who fails to disclose his prin- 
cipal for whom the request is made, 
may recover of the agent therefor. 
The agent is liable whether acting 
within his authority or not. Curtis v. 
Miller, 73 W. Va. 481, 80 S. E. 774. 

If an agent would avoid liability, the 
duty is on him to disclose his princi- 
pal, and not on the party with whom 
he deals to discover him. If he does 
not make such disclosure it will be 
presumed that he intended to bind 
himself personally. Curtis v. Miller, 
73 W. Va. 481, 80 S. E. 774. 

" 'The fact that the agent discloses 
the circumstance that he is acting as 
an agent for another does not relieve 



him from liability if he does not dis- 
close who that other is.' " Curtis v. 
Miller, 73 W. Va. 481, 484, 80 S. E. 774. 

Election by Creditof to Hold Ajgent 

— Before a party can be held to have 
made an election to hold the agent 
rather than his undisclosed principal 
liable, it is necessary that he should 
have full knowledge of all the facts 
and of his rights in the case. The con- 
duct relied upon, to be conclusive, 
should be such as to show a final and 
unequivocal election — such as would 
lead a reasonably prudent man, act- 
ing in good faith, to conclude that the 
party had elected to hold the agent 
only. To constitute an election, there 
must be something to indicate an in- 
tention, with full knowledge of the 
facts, to give sole credit to the agent, 
and abandon all claims against the 
principal. Dameron v. Quick, 116 Va. 
614, 82 S. E. 709. 

Merely filing a claim in bankruptcy 
against the estate of the insolvent 
agent of an undisclosed principal, 
while the foundation of the plaintiffs 
claim is in litgation between the agent 
and his principal, is not a conclusive 
election by the creditor to hold the 
agent. Dameron v. Quick, 116 Va. 
614, 82 S. E. 709. 

Personal Liability. — ^An agent may 
become liable on a contract contrary 
to his actual intention, but if he con- 
tracts in such form or under such cir- 
cumstances as to make himself per- 
sonally liable, he can not afterwards, 
whether his principal was or was not 
known at the time of the contract, re- 
lieve himself of that responsibility. 
Leterman v. Charlottesville Lumber 
Co., 110 Va. 769, 67 S. E. 281. 

Liability of Unauthorized Agent.r^ 
A person who signs the name of an- 
other to a contract, as agent of the 
latter, without authority to do so, is 
not personally liable on the contract as 
promisor or covenantor, but is liable, 
in an action of assumpsit, upon the im- 
plied warranty of his authority, or in 



130 



Agency 



trespass on the case, for fraud and 
deceit. Haupt v. Vint, 68 W. Va. 657, 
70 S. E. 702. 

B. LIABILITY OF PRINCIPAL 
TO THIRD PERSONS. 

See ante, "Duty of Third Persons 
to Ascertain and Consider Agent's 
Authority," III, C; "Acting as Agent 
of Both Buyer and Seller,*' etc., VI, A, 
4. 

1. On Contract. 

^a. In General. 

Apparent Autiiority. — A third person 
may recover from a principal on a con- 
tract made by the agent, on proof of 
apparent authority in the latter, within 
the scope of which the act in question 
is included. Union Bank, etc., Co. .v. 
Long Pole Lumber Co., 70 W. Va. 558, 
74 S. E. 674. See ante. "Duty of Third 
Persons to Ascertain and Consider 
Agent's Authority, III, C. 

Contracts Subject to ApprovaL — A 
contract for the purchase of a machine, 
made with an agent authorized to make 
such contracts subject to approval only, 
is not binding on the principal until 
ratified. Toledo Scale Co. v. Bailey, 78 
W. Va. 797, 90 S. E. 345. 

Credit Extended to Agent Person- 
ally. — When an agent contracts with a 
third person for a known principal and 
credit is extended to the agent person- 
ally, the principal can not afterwards be 
held liable upon the contract, but in the 
case at bar there was evidence which 
the jury had the right to believe that 
the credit was not extended to the agent 
but to the principal. Spangler v. Ash- 
well, 116 Va. 992, 83 S. E. 930. 

Unauthorized Provision in Promis- 
sory Notea — 'Promissory notes ex- 
ecuted by an agent pursuant to author- 
ity, but which contain a provision that 
the agent is not authorized to make, 
empowering any attorney-at-law to ap- 
pear in any court of record, in the state 
where payable, and waive issuance and 
service of process and to confess 



judgment are not void because of such 
unauthorized provision. Bank r. 

Bryan, 72 W. Va. 29, 78 S. E. 400. See 
post, BILLS, NOTES AND CHECKS. 

Duty to Notify Third * Persons of 
Termination of Agency. — See post, 
"Termination of Agency," IX. 

a. Disclosed Principals. 

An agent of a disclosed principal 
may bind both himself and the princi- 
pal. Lutz V. Williams, 79 W. Va. 609, 
91 S. E. 460, 462. 

Presumption as to Credit — If an 
agent makes full disclosure of his prin- 
cipal to one with whom he is dealing, 
the legal presumption is that credit is 
given to the principal and not to the 
agent, unless it further appears that 
credit was expressly and exclusively 
given to the agent. Lambert v, Phil- 
lips & Son, 109 Va. 632, 64 S. E. 945; 
Lambert v. Peters, 109 Va. 638, 64 S. E. 
1135. 

Application of Commissions to 
Agent's Debt. — Where a principal is 
indebted to his agent a debtor of the 
principal may lawfully predit the agent 
and charge the principal with a part of 
the amount due from the principal to 
his agent. This is not paying the 
agent's debt with the principal's money^ 
but lawfully applying the agent's money 
to the payment of his own debt, and is 
in no way prejudicial to the principal. 
Broad St. Bank v. Baker Motor Vehicle 
Co., 119 Va. 26, 89 S. E. 110. 

b. Undisclosed Principals. 

Va. Code 1919, § 5224; Barnes Code, ch. 
100, § 13. 

See ante, "On Contract," VII, A, 1, a. 

Where a person enters into a simple 
contract, oral or in writing, other than 
negotiable instrument, in his own name, 
when he is in fact acting as the agent 
of another and for his benefit, without 
disclosing his principal, the other party 
to the contract may, as a general rule» 
hold either the agent or his principal,, 
when discovered, personally liable on 
the contract. But he can not hold 
both. 1 Min. Inst., pp. 236.7» and 



Agency 



131 



cases cited; 3 Rob. Pr. (New), 50, and 
cases cited; Clark v. Skyles on Agency, 
§§ 457, 568. Leterman v, Charlottes- 
ville Lumber Co., 110 Va. 769, 772, 67 
S. E. 281; Curtis v. Miller, 73 W. Va. 
481, 483. 80 S. E. 774. 

Right to Set Off Claims against 
Agent — Where a contract has been 
made by the agent of an undisclosed 
principal, and a defendant has dealt 
with such agent, supposing him to be 
the sole princial, if an action be brought 
in the name of the principal, the de- 
fendant has the right to be placed in the 
same position to all intents and pur- 
poses as if the agent were the principal, 
and to set off claims against such agent 
acquired before knowledge of the fact 
that he was agent. Dixon Livery Co. 
r. Bond, 117 Va. 656, 86 S. E. 106. 

2. For Torta. 

See post, "Corruptly Influencing 
Agents, etc.," XII. 

Law Relative to Pharmacy, etc. — Va. 
Code 1919, § 1665. 

General Rule.-A principal is liable for 
wrongful acts of his agent, incidentally 
done in the exercise of the latter's au- 
thority and within the scope thereof, 
and working injury to a third party. 
Johnson v. Norfolk, etc., R. Co., 82 W. 
Va. 692, 97 S. E. 189; Weaver Mercan- 
tile Co. V. Thurmond, 68 W. Va. 530, 
536, 70 S. E. 126. 

Scope of Employment — Libel by 
Partner. — ^The principal is liable for the 
tortious manner in which a transaction 
is conducted by his agent, entrusted by 
the former to the latter to be conducted 
for him in a nontortious manner. The 
same is true, of course, with respect to 
the liability of a partnership for a libel 
by an individual partner. Myers & 
Co. V. Lewis, 121 Va. 50, 92 S. E. 988. 
See post, PARTNERSHIP. 

Under Civil Damage Act. — A liquor 
dealer is responsible for actionable in- 
juries caused by sales of liquor made by 
his agents or servants within the gen- 
eral scope of their employment, though 
the particular sale in question was 



made without his knowledge or consent, 
or even in disobedience to his general 
or specific orders. Pennington v. Gil- 
laspie, 66 W. Va. 643, 66 S. E. 1009; 
Duckworth v. Stalnaker, 68 W. Va. 197, 
69 S. E. 850. See post, INTOXICAT- 
ING LIQUORS. 

Deceit through Agent— Liability for 
a deceit exists whether accomplished 
by the deceiver in person or by agent, 
and whether communicated to the in- 
jured party directly or through his 
agent. Lowance r. Johnson, 75 W. 
ya. 784, 84 S. E. 937. 

Arrest. — A railroad company is liable 
for an unlawful arrest directed or in- 
duced by its station agent, as a means 
of effecting his wrongful detention of a 
passenger's baggage. Johnson v. Nor. 
folk, etc., R. Co., 82 W. Va. 692, 97 S. 
E. 189. See post, CARRIERS 

3. When Declarations or Admissions 
of Agent Bind Principal. 

See post, DECLARATIONS AND 
ADMISSIONS. 

4. Notice to Agent as Notice to Prin- 
cipal. 

Notice to an agent in the course of his 
employment, in relation to a matter 
within the scope of his authority, is 
notice to his principal, whether he com- 
municate his knowledge to his princi- 
pal or not. Buckeye Saw Mfg. Co. v. 
Rutherford, 65 W. Va. 395, 64 S. E. 
444; Traders, etc.. Bank v. Black, 108 
Va. 59, 65, 60 S. E. 743. 

Time of Agent's Notice. — A principal 
is affected by notice to his agent re- 
specting any matter distinctly within 
the scope of his agency when the no- 
tice is given before the transaction be- 
gins, or before is it so far completed as 
to render the notice nugatory. Black 
& Sons V. Johnson & Son, 65 W. Va. 
518, 64 S. E. 626. 

Knowledge Acquired Prior to Agency. 

— ^The correct principle is thus stated in 
31 Cyc, p. 1593: "The more logical 
rule, however, and that which is sup- 
ported by the greatest weight of recent 



132 



Agency 



authority, is that knowldge of an agent 
acquired prior to the existence of the 
agency will be chargeable to the prin- 
cipal, if it be clearly shown that the 
agent, while acting for the principal in 
a transaction to which the information 
is material, has the information present 
in his mind." Cabin Branch Min. Co. 
V, Hutchinson, 112 Va. 37, 40, 70 S. E. 
480. 

Constructive Notice^ — Notice to an 
agent of a party is constructive and not 
actual notice to the principal. But 
where one claims as purchaser for valu^ 
without notice, it is immaterial whether 
the notice was actual or constructive. 
Steinman v. Clinchfield Coal Corp., 121 
Va. 611, 93 S. E. 684. 

Warranty — Notice of Defects. — No- 
tice of defect in article sold to agent 
is notice to principal. Buckeye Saw 
Mfg. Co. V. Rutherford, 65 W. Va. 395, 
64 S. E. 444. 

Incompetency of Employees under 
Agent's Oiarget. — Knowledge by the 
agent respecting the incompetency of 
employees over whom he has charge 
for the employer, is knowledge of the 
employer. Hains v» Parkersburg, etc., 
R. Co., 75 W. Va. 613, 84 S. E. 923. 

Mortgaged Automobile E^xhibited for 
Sale. — Where a guaranty company act- 
ing through an agent took a chattel 
mortgage upon an automobile of a li- 
censed dealer, the knowledge of the 
agent that the automobile was placed in 
the salesroom of the dealer for the pur- 
pose of sale is chargeable to the princi- 
pal. Boice v. Finance, etc., Corp., 127 
Va. 563, 102 S. E. 591. 

Right to Repudiate Contract— Mis. 
representation. — In some cases the law 
of agency will conclusively impute to a 
principal the knowledge of his agent ac- 
quired by the latter under certain cir- 
cumstances; but such constructive 
knowledge will not be imputed to a prin- 
cipal under circumstances which nega- 
tive the possibility of actual knowl- 
edge on his part of the existence of a 
right of election to affirm or repudiate 



a contract because of misrepresenta- 
tion, and where no agent is authorized 
to exercise such right of election. The 
knowledge of the principal in such case 
must be actual to give rise to such duty 
of election. Rhoades v. Banking, etc., 
Co., 125 Va. 320, 99 S. E. 673. 

Scope of Authority. — On the trial of 
an issue as to whether an act done by 
an agent was within the scope of his 
actual, or, within the meaning of the 
law, apparent authority, notice to the 
agent of facts relating to or growing 
out of the act in question is not notice 
to the principal. Thompson v. Labor- 
ingman's Mercantile, etc., Co., 60 W. 
Va. 42, 53 S. E. 908. 

Agent for Both Parties.— Where 
a waiver is sought to be es- 
tablished lin consequence of the im- 
puted knowledge of an agent, and the 
same person is agent for two principals, 
knowledge acquired by him while act- 
ing as the agent of one, in order to be 
binding on the other, must have been 
present in the agent's mind at the time 
he did the act which it is claimed con- 
stituted a waiver by such other, and the 
burden is on the party relying upon the 
waiver to prove this. The proof, how- 
ever, may consist of circumstances as 
well as direct evidence. Foreman t/. 
German Alliance Ins. Ass'n, 104 Va. 
694, 52 S. E. 337. 

The agent of a railroad company to 
inspect and take up railroad cross ties 
and to whom the vendor thereof has alsot 
entrusted the duty of measuring, in- 
specting and taking up for and report- 
ing said ties to him is so far the agent 
also of such vendor as to make notice 
to him obtained while engaged in meas- 
uring, inspecting and taking up such 
cross ties of the rights and claims of 
the true owner thereof, notice also to 
such vendor. Black & Sons v. John- 
son & Son, 65 W. Va. 518, 64 S. E. 626. 
See ante, "Acting as Agent of Both 
Buyer and Seller, etc.," VI, A, 4. 

Agent Acdng Fraudultfitly.— The 
general rule that the knowledge of an 



Agency 



133 



agent acquired in executing his agency 
is imputed to the principal and charges 
him with the liabilities which such 
knowledge imposes, has no application 
to an officer of a corporation who, in an 
independent transaction for his own 
benefit, seeks to perpetrate a fraud on 
the corporation as well as upon a third 
person. In such case it is presumed 
that the officer did not communicate 
his knowledge to the corporation, and 
the latter is not chargeable with con- 
stxuctive notice thereof. Culpepper 
Nat. Bank v. Tidewater Invprov. Co., 
119 Va. 7a, 89 S. E. 118; Baker v. Berry 
Hill Mineral Spring Co., 112 Va. 280, 
71 S. E. 626. See post, OFFICERS 
AND AGENTS OF PRIVATE COR- 
PORATIONS. 

The doctrine of constructive notice 
when properly limited, is a useful one, 
but to apply it to a case where the par- 
ties relying on the doctrine are the 
agents themselves and others who had 
expressly agreed that the facts in 
possession of the agents should not be 
communicated to the principal, would 
make it an instrument of fraud. Trad- 
ers, etc., Bank v, B]ack, 108 Va. 59, 60 

5. E. 743. 

6. Liability for Unauthorized Acts of 
Agent. 

See ante, "Measure and Scope of 
Agent's Authority," III. 

A principal is not bound by any act 
of his agent which is not within the 
scope of the actual or apparent au- 
thority of the latter. Bank v. Ohio 
Valley Furniture Co., 57 W. Va. 625, 
50 S. E. 880. 

C. LIABILITY OF THIRD PER- 
SONS TO PRINCIPAL. 

See ante, "Duty of Third Persons to 
Ascertain and Consider Agent's Au- 
thority," III, C. 

Perversion of Agent's Powers. — By 
perverting his powers to his own per- 
sonal ends and purposes, an agent acts 
in excess of his authority, and persons 
who knowingly participate in such act 



of perversion, as by purchasing the 
principal's property, with knowledge 
that the agent intends to convert the 
proceeds to his own use, are not pro- 
tected by the authority conferred upon 
the agent. Bank v, Ohio Valley Fur- 
niture Co., 57 W. Va. 625, 50 S. E. 880. 

Same — Misuse of Principal's Money. 
— To make one liable by reason of par- 
ticipation in misuse of money of the 
principal by an agent, upon the ground 
that it was used to pay a private debt 
of the agent, it is necessary to show, 
not only that the party sought to be 
charged was aware that the money be- 
longed to the principal, but also that he 
was aware that the debt paid by it was 
in fact a private debt of the agent, or 
such a debt that payment thereof could 
not lawfully be made out of such 
money. Perry z\ Oerman, 63 W. Va. 
566, 60 S. E. 604. 

Where false representations are 
made to an agent, for the purpose of in. 
ducing him to act upon them in behalf 
of his principal, the latter has a right of 
action for the fraud. Lowance v, 
Johnson, 75 W. Va. 784, 84 S. E. 937, 

VriL RATIFICATION OF 
AGENT'S UNAUTHOR- 
IZED ACTS. 

Accepting Benefits. — A principal may 
ratify the voidable acts of his agent, 
and such ratification may be express or 
implied. And where, after a discovery 
of such acts, the principal, with full 
knowledge of the facts, acts in such 
manner as to unmistakably indicate 
that he intends to avail himself of the 
benefits of the contract made by the 
agent, he will be deemed to have rati- 
fied such acts in their entirety. Truslow 
V. Parkersburg Bridge, etc., R. Co., 61 
W. Va. 628, 57 S. E. 51; Southern 
Amusement Co. v. Ferrell-Bledsoe 
Furniture Co., 125 Va. 429, 99 S. E. 71©. 

A principal, benefited by an unau- 
thorized act of his agent, can not deny 
the authority of the agent to do the act 
from which such benefit accrued, with- 



134 



Agency 



out first having restored the property 
or other thing so acquired, or paid to 
the injured party the value thereof. 
Union Bank, etc., Co. v. Long Pole 
Lumber Co., 70 W. Va. 558, 74 S. E. 
674. See Spangler v. AshWell, 116 Va. 
992, 83 S. E. 930, citing S. C, 114 Va. 
325, 76 S. E. 281. 

The retention of the goods is evi- 
dence of a ratification by the defend- 
ant of the contract made on its behalf 
by its agent. Southern Amusement 
Co. V, Ferrell-Bledsoe Furniture Co., 
125 Va. 429, 99 S. E. 716. 

If provisions and material for work 
in construction of a railroad are sold 
to the contractor through one assum- 
ing to be agent for the contractor, and 
they are used in his work to his bene- 
fit, such contractor is liable for them, 
though no proof of agency appears. 
Black Lick Lumber Co. v. Camp 
Constr. Co., 63 W. Va. 477, 60 S. E. 
409. 

Where the owner of the equitable 
title to land by an executory contract 
or title bond, authorizes his vendor, to 
renew a prior lease for oil and gas cov- 
ering the larger tract, of which his land 
is a part, he thereby constitutes his ven- 
dor his agent to contract for such lease, 
and by accepting, through his agent, 
his share of rental or commutation 
money, accruing under such lease, he 
thereby ratifies the same, concluding 
and estopping him from thereafter set- 
ting up title to his land in hostility 
to that of such lessee, and the statute 
of frauds, is no defense to the rights 
and claims of such lessee. Mustard 
V. Big Creek Development Co., 69 W. 
Va. 713, 72 S. E. 1021. 

Ratification by Silence. — Failure on 
the part of a principal to dissent from 
or repudiate an unauthorized act of his 
agent, within reasonable time, depend- 
ent upon the nature of the transaction 
and the situation and surroundings of 
the parties concerned, is evidence of 
ratification of the unauthorized act. 
Thompson v. Laboringman's Mercan- I 



tile, etc., Co., 60 W. Va. 42, 53 S. E. 
908. 

Lack of knowledge on the part of a 
principal, of any of the material facts 
connected with an unauthorized act of 
his agent, done on his behalf, will pre- 
vent the silence of the principal, or his 
failure to repudiate the act, from 
amounting to a ratification thereof. 
Thompson v. Laboringman's Mercan- 
tile, etc., Co., 60 W. Va. 42, 53 S. E. 
908. 

Knowledge of FactSw — "In the ab- 
sence of facts or circumstances suffi- 
cient to put a reasonably prudent man 
on inquiry, no duty rests upon the 
principal to make any effort to dis- 
cover whether another is doing unau- 
thorized acts in his name, and he has 
the right to assume, until otherwise ad- 
vised, that his agent will act in the 
scope of this authority. Notice is not 
to be imputed to a principal by reason 
of the mere fact that he had reasonable 
opportunity to acquire knowledge." 
Raven Red Ash Coal Co. v, Herron, 

114 Va. 103, 114, 75 S. E. 752. 

Prompt Disavowal of Unauthorized 
Act. — If a principal knows that an 
agent has transcended his authority, he 
must promptly disavow the act, if he 
makes it his own. Winston v, Gordon, 

115 Va. 899, 80 S. E. 756; La Belle Iron 
Works V, Quarter Sav. Bank, 74 W. 
Va. 569, 579, 82 S. E. 614. 

If the principal named in an indem- 
nity bond would escape responsibility 
for the unauthorized act of his agent 
in signing and executing the bond on 
his behalf he must promptly repudiate 
the same before the rights of third per- 
sons intervene, else he will be held to 
have ratified the unauthorized act, and 
he estopped to deny the agent's au- 
thority. La Belle Iron Works v. 
Quarter Sav. Bank, 74 W. Va. 569, 82 
S. E. 614. 

Sale. — Where an agent authorized to 
sell goods for his principal in partic- 
ular terms, violates those terms, and 
makes sale thereof on different terms, 



Agency 



135 



and the principal with full knowledge 
of the facts and circumstances of the 
sale, afterwards elects to accept from 
the agent or his representatives notes 
and securities for the purchase money, 
he will be deemed to have ratified the 
unauthorized act of the agent and be 
bound by his contract. Star Piano 
Co. V. Brockmeyer, 78 W. Va. 780, 90 
o. £(. 338. 

Ratification of Acts of Stranger. — 
Where a stranger holds himself out as 
the agent of another and makes a con- 
tract or does an act for that other's use 
or benefit, the latter may ratify. But, 
although a stranger may falsely repre- 
sent himself as the agent of another, 
yet if he makes a purchase in his own 
name, for his own benefit, and pays 
his own money therefor, there can be 
no ratification. Nor can the sup- 
posed principal, as against the alleged 
agent, claim the benefit of the pur- 
chase unless it was made under such 
circumstances as creates an estoppel, 
or the supposed principal has been de- 
prived of some legal right, or been 
otherwise injured. Virginia Poca- 
hontas Coal Co. V. Lambert, 107 Va. 
368, 58 S. E. 561; Security Loan, etc., 
Co. V. Powell, 119 Va. 231, 89 S. E. 91. 

Same — Question for Jury. — Where 
there is no agency in fact, but an inter- 
meddler or stranger, one not in privity 
with the principal, by authority duly 
g^iven, has assumed to act as agent, and 
the question as to whether such unau- 
thorized act has been ratified, it be- 
comes one of intention on the part of 
the assumed principal, a fact for jury 
determination. Uniontown Grocery 
Co. V. Dawson, 68 W. Va. 33fi, 69 S. E. 
845. 

Ratification of Tort — Mere ratifica- 
tion is not itself a test of liability of 
one for the tortious act of another 
much less is the receipt of a benefit 
from the tortious act such test, which, 
in itself does not extend beyond being 
a circumstance in evidence tending in 
part to show ratification. Ratification 



is material as bearing upon the meas- 
ure of damages, but is not a true test 
of original liability. The question 
still remains, was the tortious act com- 
mitted by the servant or agent in the 
course of his service or employment? 
Myers & Co v. Lewis, 121 Va. 50, 92 
S. E. 988. 

If a person, assuming to be agent of 
another, performs for him an act, which 
he afterwards ratifies by receiving the 
benefits derived from it, the principal 
thereby becomes liable for the torts 
committed by the agent, within the 
scope of his assumed authority, in per- 
forming the act. The principal can 
not accept the benefits, without also 
bearing the burdens, of the agent's 
acts. Lowance v, Johnson, 75 W. Va. 
784, 84 S. E. 937. 

Same — Act outside Relationship.— ^ 
In cases where the individual action of 
the general agent is so out of the ordi- 
nary course of the business of his 
principal that it is evident he acted indi- 
vidually, outside of the relationship of 
principal and agent, that the act was 
not done in the name of the principal 
or for his use, the act is regarded as 
that of the individual and not that of 
the principal, and upon principle, in 
such cases, the ratification of the tor- 
tious act by the principal, would not 
have rendered the latter liable there- 
for. Myers & Co. v. Lewis, 121 Va. 
50, 74, 92 S. E. 988. 

Ratifying Beneficial/ and Reptidiat- 
ing Detrimental Part. — It is a general 
principle which applies without regard 
to the mode of ratification that a void- 
able engagement, made by one assum- 
ing to act as agent, cannot be ratified 
in part, so far as it is beneficial to the 
principal, and repudiated so far as it 
is detrimental to him. Third Nat. 
Bank v. Laboringnian's Mercantile, etc., 
Co.; 56 W. Va. 446, 49 S. E. 544. 

Slight Evidence Sufficient.— An act 
of an agent from which he derives no 
personal benefit, but which is done in 
good faith for the benefit of his princi- 



136 



Agency 



pall and which was apparently neces- 
sary and would redound to his benefit, 
will be held to have been ratified and 
acquiesced in, and be thereby ren- 
dered valid upon slight evidence. 
Winston v, Gordon, 115 Va, 899, 80 
S. E. 756. 

IX. TERMINATION OF AGENCY. 

YiK, PRESUMPTION AS TO CON- 
TINUANCE OF AGENCY. 

An agency once established will be 
presumed to continue, in the absence 
of evidence to the contrary. White v. 
American Nat, Life Ins. Co., 115 Va. 
305, 78 S. E. 582. 

A. MODE OF TERMINATION. 

2. Revocation of Agent's Authority. 

Agency Uncoupled with Interest. — 
If no term of service has been agreed 
upon, the principal may at any time re- 
voke the authority of his agent, so far 
as it relates to things to be done and 
remaining unexecuted, unless the au- 
thority is coupled with an interest or 
conferred for a valuable consideration 
to the principal. Casey v. Walker, 122 
Va. 465, 95 S. E. 434; Barnard v. Gard- 
ner Invest. Corp., 129 Va. 346, 106 S. 
E. 346. 

When an agency is not such as to 
constitute what in legal parlance is 
called a power coupled with an interest, 
and no third party's rights are in- 
volved, the agency, so long as it re- 
mains unexecuted, may be effectually 
revoked at the will of the principal, but 
a wrongful revocation will nevertheless 
render him liable in damages to his 
agent. In other words, the agency 
may always be revoked, but the con- 
tract of employment will not neces- 
sarily be thereby rescinded. Atlantic 
Coast Realty Co. v. Townsend, 124 Va. 
490, 98 S. E. 684; Alexander v. Sher- 
wood Co., 72 W. Va. 195, 199, 77 S. E. 
1027. 

A contract by a landowner with a 
real estate agent, giving the agent an 
exclusive right to sell the landowner's 



property during a certain period, may 
be terminated by the principal at ivill* 
on giving notice, in good faith, before 
the agent finds a purchaser. Barnard 
V, Gardner Invest. Corp., 129 Va. 346, 
106 S. E. 346. 

To constitute a power coupled with 
an interest, a property in the thing 
which is the subject of the agency or 
power, must be vested in the person 
to whom the agency, or power, is given 
so that he may deal with it in his own 
name; such that, in the event of the 
principal's death, the authority could 
be exercised in the name of the agent. 
There must be an interest in the sub- 
ject of the agency itself, and not a mere 
interest in the result of the execution 
of the authority. So an interest aris- 
ing from commissions or the proceeds 
of a transaction is not an interest which 
will prevent revocation. Casey v. 
Walker, 122 Va. 465, 95 S. E. 434; Alex- 
ander V. Sherwood Co., 72 W. Va. 195, 
199, 77 S. E. 1027. 

The words, "coupled with an inter- 
est," as used in the rule that a real es- 
tate agent's contract is terminable at 
the will of his principal unless "coupled 
with an interest," mean, an interest 
in the land itself, as distinguished from 
an interest in the proceeds of sale. 
Barnard v, Gardner Invest. Corp., 129 
Va. 346, 106 S. E. 346. 

Mutual Agreement Based i4>on Val- 
uable Consideration. — In the instant 
case the brokerage company's agree- 
ment to furnish the money for the de- 
velopment and subdivision of the land, 
and for the expenses of the sales, was 
a valuable consideration for the agree- 
ment that the brokerage company 
should have the exclusive right of sale 
for a year. And, while the agency 
was not coupled with such interest as 
to make it irrevocable, the contract 
which created it was a mutual agree- 
ment between competent parties for a 
lawful purpose and upon a valuable 
consideration, with the result that 
neither party could violate it without 



Agency 



137 



becoming responsible to the other for 
the breach. Atlantic Coast Realty 
Co. V. Townsend, 124 Va. 490, 98 S. E. 
684. 

Necessity for Agent's Assent. — ^The 
principal has no right as a matter of 
law to terminate the contract of agency , 
as long as the obligations of the par- 
ties under the contract continue, with- 
out the assent of the agent. The par- 
ties to a contract may terminate it by 
mutual consent. Smyth Bros., etc., 
Co. V. Beresford, 128 Va. 137, 104 S. E. 
371. 

Disposal of Principal's Interest— 
An agency is effectually revoked when 
the principal disposes of his interest in 
the subject-matter of the agency in a 
manner inconsistent with the authority 
conferred, as by assignment, convey- 
ance, contract of sale, or otherwise. 
This is a familiar and settled proposi- 
tion of the law of agency; but it by no 
means follows that such a revocation 
can be made by the principal as a mat- 
ter of right and without liability to 
his agent. The latter question de- 
pends upon the character and terms of 
the agent's contract. Atlantic Coast 
Realty Co. v, Townsend, 124 Va. 490, 
98 S. E. 684. 

B. EFFECT OF TERMINATION. 

Dnty to Give Notice of Tenninatioa. 

—"The duty of the principal to notify 
third persons of the termination of the 
agency is of the same character 
and requires the same degree of 
certainty as that which the law im- 
poses upon the members of a copart- 
nership in the case of dissolution, as a 
measure of protection from liability by 
reason of subsequent acts of the former 
members of the dissolved firm. Clafin 
V. Lenheim, 66 N. Y. 301; Gragg v. 
Home Ins. Co., 107 S. W. 321. In all 
such cases, persons who have dealt 
with the principal through the agent 
will be protected in continuing to do 
so, unless and until they have in some 
way obtained actual notice of the ter- 



mination of the relation, and, as to 
them, mere publication of notice in a 
newspaper and local notoriety of the 
fact are not sufficient." Union Bank, 
etc., Co. V, Long Pole Lumber Co., 70 
W. Va. 558, 74 S. E. 674. 

X. ACTIONS. 

A. ACTION BY PRINCIPAL 
AGAINST AGENT OR THIRD 
PERSON. 

1. Action against Agent. 

Illegal Contracts. — If money has been 
paid to an agent for the use of his 
principal, the legality of the action of 
which it is the fruit or with which it 
was connected does not affect the right 
of the principal to recover it. Cheuv- 
ront V. Horner, 62 W. Va. 476, 59 S. 
E. 964 

* Principal's Obligation. — "As between 
the principal and the agent, the more 
modern cases hold that it is competent 
for the agent to show that what ap- 
pears to be the agent's obligation is in 
fact the principal's." Clarke v. Tal- 
bott, 72 W. Va. 46, 49, 77 S. E. 523. 

Custom. — Evidence of a custom in 
contravention of the common law is not 
admissible to change the legal rights 
pertaining to the relation of principal 
and agent. National Fire Ins. Co. v, 
Catlin, 8 Va. L. Reg. 127. 

Acquiesence by an agent in state- 
ments of the account between them 
rendered by his principal, and his fail- 
ure to object to the same in any man- 
ner, supplemented by evidence show- 
ing the relation of principal and agent 
and a course of business between them, 
are sufficient evidence of liability, in 
the absence of opposing evidence, to 
call for a verdict against him, and the 
verdict of the jury ignoring such evi- 
dence should be set aside. Indiana, 
etc., Ins. Co. v. Bowman, 72 W. Va. 
704, 79 S. E. 651. 

Negligence of Agent— Evidence Sup- 
porting Verdict for Defendant. — On 
the question whether the defendant 
trustee was the mortgagee's agent in 



138 



Agency 



negotiating and placing the loan in 
question the evidence was sufficient to 
support a verdict for defendant. Yates 
V, Ley, 121 Va. 265, 92 S. E. 837. 

2. Action against Third Person. 

Parties. — Where one of the parties to 
a contract for the sale of real estate is 
acting by an agent and the memoran- 
dum of the contract is signed by the 
agent as a party, without disclosing 
his principal, there is a sufficient desig- 
nation of the parties, and the principal 
may sue and be sued upon the con- 
tract. Donahue v. Rafferty, 82 W. Va. 
535, 96 S. E. 935. 

Sane — Suit on Contract Where Prin- 
cipal Undisclosed. — Either the agent or 
his principal may sue when a nonnego- 
tiable simple contract is entered into be- 
tweeA an agent of an undisclosed prin- 
cipal and a third person; the defendant, 
when the principal sues upon it, being 
entitled to be placed in the same situa- 
tion at the time of the disclosure of 
the real principal, as if the agent had 
been the contracting party. If the 
agent is sued, the plaintiff recovers 
such damages as have resulted from the 
breach of the contract by him. If the 
agent sues, he is entitled to recover 
(unless his principal interferes in the 
suit) the full measure of damages in 
the same manner as though the action 
had been brought by the principal. 
Leterman v, Charlottesville Lumber 
Co., 110 Va. 769, 67 S. E. 281. 

Where an agent is contracted with 
by deed in his own name, his prmcipal 
can not sue upon it. But where a con- 
tract not under seal is made by an 
agent in his own name for an undis- 
closed principal, either the agent or 
the principal may sue upon it. Oliver 
Refin. Co. v, Portsmouth, etc., Refin. 
Corp., 109 Va. 513, 64. S. E. 56. 

A declaration, in an action on a con- 
tract, that alleges in the first count, 
one of the parties named herein was 
acting for the plaintiff, that the 
contract was afterwards approved by 
the stockholders of the defendant com- 



pany as a contract with the plaintiff; 
that it (the plaintiff) furnished the 
whole consideration to the defendant 
provided for by contract, and that the 
defendant conveyed and transferred 
all the property mentioned in it to the 
plaintiff, sufficiently alleges that the 
party who made the contract acted as 
the agent of the plaintiff. Oliver Refin. 
Co. r. Portsmouth, etc., Refin. Corp., 
109 Va. 513, 64 S. E. 56. 

Burden of Proof. — In a suit by an 
undisclosed principal for specific per- 
formance of a contract for the sale of 
real estate, the burden is upon him to 
show the existence of the agency at the 
time the contract was entered into be- 
fore he can invoke the doctrine of un- 
disclosed agency. The mere adoption 
of a contract, not actually, nor purport- 
ing to have been made on his behalf 
is not sufficient to enable him to main- 
tain the suit. Security Loan, etc., Co. 
XK Powell, 119 Va. 231, 89 S. E. 91. 

B. ACTION BY AGENT AGAINST 
THIRD PERSONS OR PRIN- 
CIPALS. 

1. Action against Third Person. 
Parties— Undisclosed PrincipaL — An 

undisclosed principal is not a necessary 
party to a suit against the one with 
whom a contract is made to rescind the 
contract and recover the property the 
subject of the contract or the value 
thereof. Poole z\ Camden, 79 W. Va. 
310, 92 S. E. 454. 

Same — ^Action in Agent's Own Name. 
— In the instant case, the action ^vas 
brought in the name of the agent vrith 
whom and in whose name the contract 
in writing was made and who had an 
interest therein. While there can, of 
course, be only one satisfaction of the 
debt, it is clear that such an agent has 
the right to sue upon the contract in 
his own name. White & Co. v, Jordan, 
124 Va. 463, 98 S. E. 24. 

2. Action against Principal, 
a. Defenses. 

Reasonableness of Coounissioiia. — 



Agency 



139 



In an action by an agent for commis- 
sions, there was no evidence upon the 
reasonableness, or unreasonableness, of 
the commissions agreed upon. Both 
parties anticipated profit from the ar- 
rangement, and if the result was more 
profitable to one party than to the 
other, that fact furnished no reason for 
avoiding the contract in whole or in 
part Smyth Bros., etc., Co. v, Beres- 
ford, 128 Va. 137, 104 S. E. 371. 

Performance of Contract Rendered 
Impossible by Principal. — A principal 
cannot, after having made a valid con- | 
tract with an agent for the exclusive | 
right to sell, render performance on the ' 
part of the agent impossible by making 
the sale himself, and then successfully 
defend an action for breach of the con- 
tract by claiming that the agent might 
not have made the sale. Atlantic 
Coast Realty Co. v, Townsend, 124 Va. 
490, 98 S. E. 684. 

b. Burden of Proof. 

Action for Commissions. — In an ac- 
tion by an agent for commissions, the 
burden of proving his case is upon the 
plaintiff, and he must prove it by' a pre- 
ponderance of evidence in order to en- 
title him to recover. Smyth Bros., 
etc., r. Bercsfofd, 128 Va. 137, 104 S. 
E. 371. 

c. Admissibility of Evidence. 

Evidence of a custom in contraven- 
tion of the common law is not admis- 
sible to change the legal rights per- 
taining to the relation of principal and i 
agent. National Fire Ins. Co. v. Cat- ' 
lin, 8 Va. L. Reg. 127. 

d. Damages. 

The measure of damages for breach 
of contract for the exclusive right of 
sale of automobiles in a certain terri- 
tory is the amount of discount to be al- 
lowed plaintiff on sales under the con- 
tract. Eastern Motor Sales Corp. v, 
Apperson-Lee Motor Co., 117 Va. 495, 
85 8. E. 479. 



e. Instructions. 

Whether Warranted by Eividence — 
Authority of Agent. — In the instant 
case it was held that there was ample 
evidence to support an instruction that 
if the jury believed that plaintiff pur- 
chased for defendant certain apples 
after he had fully disclosed to the de- 
fendant the quality of the apples to be 
purchased, and had been fully in- 
structed so to do by it, and the de- 
fendent sustained damages as a result 
thereof, the damages could not be im- 
puted to plaintiff, and he was entitled 
to proper compensation for his labor, 
and to be reimbursed for the money 
laid out by him in the purchase. Winn 
Bros. V. Lipscomb, 127 Va. 554, 103 S. 
E. 623. 

Same — Fraud.^ — ^The evidence was 
held sufficient to sustain the instruc- 
tion that, if the jury believed that the 
defendant canceled his contract with 
plaintiff solely for the purpose of de- 
priving the plaintiff of his compensa- 
tion in fulfilling the contract, this con- 
stituted fraud on the part of the de- 
fendant, and they shall find for the 
plaintiff. Eastern Motor Sales Corp. 
V. Apperson-Lee Motor Co,, 117 Va. 
495, 85 S. E. 479. 

Same — Right of Sub-Agent to Com- 
pensation on Sale Made by His Em- 
ployer. — A sub-agent who lawfully has 
the exclusive sale of the goods of a 
manufacturer, within a designated ter- 
ritory, and for which he is to receive 
a stated compensation, is entitled to 
his compensation on sales within such 
territory, which were induced by 
him or whether such sales were made by 
his employer or the manufacturer; and, 
in an action by such sub-agent against 
his employer to recover compensation 
for such a sale, an instruction that the 
plaintiff is entitled to recover if the 
jury believe that the defendant made 
such sale within the territory allotted 
to the plaintiff and that the plainiff 
was the procuring cause thereof, is suf- 
ficiently sustained by proof of such 



140 



Agency 



sale by the manufacturer and not by 
such employer. Eastern Motor Sales 
Corp. V. Apperson-Lee Motor Co., 117 
Va. 495, 85 S. E. 479. 

Same — Commissions. — In an action 
by an agent for his commissions on a 
sale of horses, it was held that there 
was not sufficient record evidence to 
warrant an instruction that the jury 
should find for the defendants, pro- 
vided they ascertained from the evi- 
dence that the contract stipulated 
that the plaintiff for a contingent com- 
pensation, should exercise his personal 
influence with an inspector, or inspect- 
ors, of the French or Belgian govern- 
ments, to secure the acceptance by 
them of the artillery and cavalry 
horses which it was contemplated 
should be offered for sale to said gov- 
ernments by the defendants for war 
purposes. Smyth Bros., etc., Co. v, 
Beresford, 128 Va. 137, 104 S. E. 371. 

Same — Illegality of Split Commis- 
sions. — In an action by an agent for 
commissions, it is not error to refuse 
an instruction upon the illegality of 
split commissions, where there was 
no evidence in the case to support 
such an instruction. Smyth Bros., 
etc., Co. V. Beresford, 128 Va. 137, 104 
S. E. 371. 

Same^Plaintifirft Version. — In an 
action by an agent against his princi- 
pal for commissions, an instruction 
which accurately states the law with 
respect to the principles of the plain- 
tiff's recovery in the event the jury 
gives credence to his version of the 
contract, is not erroneous. Smyth 
Bros., etc., Co. v, Beresford, 128 Va. 
137, 104 S. E. 371. 

An instruction in an action for com- 
missions, that if the jury believed the 
defendant's version of the contract be- 

« 

tween the parties, the agreement was 
an "entire one," and not severable, and 
that, if the plaintiff failed to discharge 
his undertakings under this contract, 
unless he was hindered in such dis- 
charge, or relieved from such dis- 
charge, by the defendants, they should 



find for the defendants, was not erro- 
neous under the circumstances of the 
case. Smyth Bros., etc., Co. v, Beres- 
ford, 128 Va. 137, 104 S. E. 371. 

Liability of Principal Preventing 
Performance of Contract by Aflrent— 
In an action by an agent for commis- 
sions on horses sold by his principal 
to a customer obtained by him, an in- 
struction correctly stated the law of 
the hypothetical situation which it pre- 
sented. Smyth Bros., etc., Co. v, 
Beresford, 128 Va. 137, 104 S. E. 371. 

Instructions Ignoring Defendant's 
Theory. — In an action by an agent for 
commissions on horses sold, the jury 
having been instructed that they could 
find the $1 contract, if they believed 
that the evidence was to that effect, 
and that they should apply the law 
enunciated by the court in the instruc- 
tions, to their conclusions, the jury 
very naturally would have applied the 
same principles, mutatis mutandis, to a 
verdict ascertaining a commission of 
$1 per horse sold that they had been 
directed to apply to a verdict finding a 
commission of $5 per horse, and the in- 
structions given are therefore not sub- 
ject to the criticism that they ignored 
defendant's theory. Smyth Bros., 
etc., Co. V, Beresford, 128 Va. 137, 104 
S. E. 371. 

Abandonment of Contract Caused by 
Defendants. — In an action by an agent 
for commissions, an instruction as ten- 
dered relieved the defendants from lia- 
bility in case of abandonment of the 
contract and failure to render the 
agreed services, whatever might have 
been the justification of the plaintiff 
for such abandonment and nonperform- 
ance. Held: That an amendment of 
the instruction by the court excepting 
from such consequences of relief an 
abandonment and failure due either to 
the obstruction of the defendants, or 
to their assent excusing the plaintiff 
from performance, was proper. Smyth 
Bros., etc., Co. z\ Beresford, 128 Va. 
137, 104 S. E. 371. 

Time of Consummation of Salcd — 



Agency 



141 



Under a contract by an agent to pay 
a sub-agent an agreed compensation 
on the sale of certain described auto- 
mobiles, if a contract of sale is ef- 
fected and the automobiles are subse- 
quently delivered to and paid for by 
the purchaser, in an action by the sub- 
agent to recover such compensation 
from his employer, it is not prejudicial 
to the employer to instruct the jury 
that, as between such employer and 
his sub-agent, the sale took place when 
the automobiles were delivered by the 
manufacturer to the carrier, although 
the title was not to pass from the 
manufacturer until the price of the 
automobiles was paid. Eastern Mo- 
tor Sales Corp. v, Apperson-Lee Motor 
Co., 117 Va. 495, 85 S. E. 479. 

Designation of Character of Com- 

pensation. — Although an agency within 
the meaning of the automobile trade 
consists in giving the agent the exclu- 
sive right to purchase for cash from 
the manufacturer machines, at a dis- 
count from the list price, and retail 
them to purchasers at the full list 
price, where the compensation of the 
person making the sale is fixed by a 
percentage of the price obtained for a 
machine, it is wholly immaterial 
whether such compensation be called 
a discount or a commission, and it is 
not reversible error for the trial court 
to designate it a commission in an in- 
struction given in an action to recover 
such compensation. Eastern Motor 
Sales Corp. v, Apperson-Lee Motor 
Co., 117 Va. 495, 85 S. E. 479. 

Pro-Tince of Jury. — In an action by an 
agent for commissions, the following 
instnacton was held proper: "The jury 
are to find from all the evidence, oral 
and written, whether or not a contract 
was made between the plaintiff and the 
defendants and what the terms of the 
agreement were; whether any compen- 
sation agreed to be paid the plaintiff 
was modified by the mutual consent of 
the parties; whether any contract they 
may find to have been made or modi- 



fied was ended or its further execution 
abandoned by mutual consent of the 
parties; and the jury should apply the 
law as enunciated in the instructions 
of the court to their conclusions upon 
these and all other disputed matters 
arising upon the evidence." Smyth 
Bros., etc., Co. v. Beresford, 128 Va. 
137, 104 S. E. 371. 

Contract EUroneously Stated. — An 
instruction in an action by an agent 
for commissions in which the contract 
is erroneously stated, should be re- 
fused. Smyth Bros., etc., Co. v, 
Beresford, 128 Va. 137, 104 S. E. 371. 

Jury Given Indefinite Authority to 
Avoid Contract — In an action by an 
agent for commissions, an instruction 
giving the jury sweeping and indefinite 
authority to avoid the agreement of 
the parties, on the ground that it was 
"excessive, extortionate, and uncon- 
cionable, by reason of the dispropor- 
tion of the value of the services to the 
agreed compensation," "or for any 
other reason," is objectionable. Smyth 
Bros., etc., Co. v. Beresford, 128 Va. 
137, 104 S. E. 371. 

C. ACTION BY THIRD PERSONS 
AGAINST PRINCIPAL. 

1. Parties. 

Where one of the parties to a con- 
tract for the sale of real estate is acting 
by an agent and the memorandum of 
the contract is signed by the agent as 
a party, without disclosing his prin- 
cipal, there is a sufficient designation 
of the parties, and the principal may 
sue and be sued upon ' the contract. 
Donahue v, Rafferty, 82 W. Va. 535, 96 
S. E. 935. 

\%. Pleading. 
How Contract Declared on. — In an 

action against a principal on a contract 
made through his agent, the contract 
may be declared on either as made by 
the principal, or by him through his 
agent. Black Lick Lumber Co. v. 
Camp. Constr. Co., 63 W. Va. 477, 60 
S. E. 409. 



142 



Agency 



Count Presenting Good Cause of 
Action. — In a count the plaintiff averred 
that Z. so represented himself to 
the plaintiff that at the special request 
Z. the plaintiff agreed to sell unto the 
defendant, for the sum of $1,000 cash, 
which Z. acting on behalf of the 
defendant, promised that defen- 
dant would pay to the plaintiff, cer> 
tain mineral rights in the plaintiff's 
tract of land; that the defendant, by 
his agent, did pay unto the plaintiff a 
part of the purchase price, whereupon 
the plaintiff did make and deliver to Z. 
a deed of bargain and sale conveying 
said mineral rights in fee simple to de- 
fendant, etc. Held the count presents 
a good cause of action for the price. 
Spangler v, Ashwell, lib Va. 992, 83 
S. E. 930, 931. 

2. Evidence. 

See ante, "Evidei.ce of Agency,'* II, 
C. 

a. Admissibility. 

Frai^dulent Representations *^ Parol 
F"*'*.cnce.--Parol evidence is admissible 
prove that a contract of sale was in- 
duced by the fraudulent representa- 
tions of seller's agent, notwithstanding 
a clause limiting the authority of the 
selling agent, and exempting the seller 
from liability for representations of its 
agent at variance with the written con- 
tract. White Sewing Mach. Co. v, 
Gilmore Furniture Co., 128 Va. 630, 105 
S. E. 134. 

Declarations of Plaintiff. — In an ac- 
tion against a contractor to recover 
damages for breach of contract to do 
work in a particular manner, the plain- 
tiff may testify that, while the work was 
being done, he complained to the sub- 
contractor, who as the agent of the de- 
fendant was doing the work, of the un- 
satisfactory character of the work. 
Lambert v. Jenkins, 112 Va. 376, 71 S. 
E. 718. 

Reception of Money by Principal. — 
Proof of a loan made to an agent on 
behalf of his principal is not evidence 
of the reception of the money by the 



principal, if the agent had no 
authority to borrow moi ey on behalf 
of his principal. Nor is the agent's 
admission or representation as to the 
purpose for whch he borrowed the 
money evidence against his principal. 
Thompson f. Laboringman's Mercan- 
tile, etc., Co., 60 W. Va. 42, 53 S. E. 
908. 

Mere rumor or common belief, that 
an agent has power to do a particular 
act on behalf of his principal, is not, of 
itself, evidence of such authority. 
Thompson v, Laboringman's Mercan- 
tile, etc., Co., 60 W. Va. 42, 53 S. E, 
908. 

b. Sufficiency. 

Liability on Contract. — In an action 
against a principal on a contract made 
in its name by its agent with plaintiff 
for the purchase of furniture for a 
theatre, defendant's testimony tended 
to show, and the agent testified, that 
he had no authority to act as the 'agent 
for his principal in making the contract 
in controversy. The agent was man- 
ager and in charge of defendant's 
theatre and it appeared from the testi- 
mony that he had yery broad power. 
He had made similar contracts with 
plaintiff before, which had been paid 
without question by the defendant. 
Held: From this and other evidence of 
like character tending to show the ap- 
parent scope of the agent's authority, 
that defendant was liable upon the* 
contract in controversy. Southern 
Amusement Co. v. Ferrell-Bledsoe 
Furniture Co., 125 Va. 429, 99 S. E. 716. 

Instigation of Arrest. — Words and 
conduct on the part of the agent fairly 
tending to prove co-operation with the 
officer in the making of the arrest or 
encouragement thereof, justify a find- 
ing of instigation of the arrest, on his 
part. Johnson v. Norfolk, etc., R. Co., 
82 W. Va. 692, 97 S. E. 189. 

3. Trial. 

The order in which evidence is in- 
troduced is a matter within the discre- 
tion of the trial court. It is more reg- 



Agency 



143 



tilar, perhaps, to establish an agency 
first, and then introduce evidence as to 
the liability of the principal by reason 
of the agent's acts but if the agency 
and the liability of the principal for his 
acts be in fact established, the order in 
which the evidence was introduced to 
establish these facts is not reversible 
error. The question is not so much 
as to the order of proof, but its suffi- 
ciency. Mclntyre v. Smyth, 108 Va. 
73«, 62 S. E. 930. See post, ORDER 
OF PROOF. 

D. ACTION BY THIRD PERSON 
AGAINST AGENT. 



1. 

How Agent Exceeding Authority Pro- 
ceeded against. — Where an agent ex- 
ceeds his authority in making a con- 
tract for his principal, he is not person- 
ally bound on the contract, unless it 
contains apt words to charge him, but 
must be proceeded against either by an 
action for deceit or by an action for 
the breach of his warrant of authority. 
Lancaster v. Stokes, 119 Va. 149, 89 

2. Limitation of Actions. 

See post, LIMITATION OF AC- 
TIONS. 

As a general rule, when there is an 
undertaking or agency which requires 
a continuation of services, the statute 
of limitations does not begin Xo run un- 
til the termination of the undertaking 
or agency. The facts in this case do not 
take it from under the influence of the 
general rule. The agency was con- 
tinuous for 17 years; the transactions 



were numerous, involving a long and 
complicated account, the details of 
which were known only to the agent, 
and the principal was a nonresident 
and compelled to rely upon the agent 
for a faithful discharge of his trust. 
Wilson V. Miller, 104 Va. 446, 51 S. E. 
837. 

3. Evidence. 

Whether Obligation of Principal or 
Agent.^If a note on its face is the 
undertaking of the agent only, no ref- 
erence being made to his representa- 
tive character, parol evidence will not 
be allowed to exonerate the agent 
whether the principal was known or 
unknown at the time the note was exe- 
cuted; but if the note bears on its face 
appellation indicating that it was signed 
in a representative capacity, parol evi- 
dence is admissible, as against an im- 
mediate party or a holder with notice, 
to show that the obligation is that of 
a principal only, and that it was so un- 
derstood when the note was executed. 
Clark V. Talbott, 72 W. Va. 46, 77 S. E. 
523. 

"Where the paper on its "face is the 
undertaking of the agent only, no refer- 
ence being made on its face to represen- 
tative capacity, and where the paper on 
its face is unmistakably the principal's, 
parol evidence will not be received, in 
the one case to exonerate, and in the 
other to charge the agent." Clarke 
V, Talbott, 72 W. Va. 46, 48, 77 S. E. 
523. 

XIL CORRUPTLY INFLUENCING 
AGENTS, ETC. 

See Va. Code 1919 § 4712. 



AGENCY DIRECTOR.— See Long v. United Sav., etc., Co., 76 W. V^.. 61 
34, 84 S. E. 1053. See also post, CORPORATIONS. 

AGGRAVATION OF DAMAGES.— See post, EXEMPLARY DAMAGES: 
DAMAGES. 



AGREED CASE. 

CROSS REFERENCKS. 

See the title AGREED CASE, vol. 1, p. 283, and references there given. 



Definition. — A case agreed, being a 
substitute for a special verdict, is sub- 
ject to like rules. McGhee & Co. v. 
Cox, lie Va. 718, 82 S. E. 701. 

Effect of Agreement— Right to Ben- 
efit of Agreed Statement of Fact at 
Variance with ' Party's Pleading. — 
There is no rule of pleading or any 
reason or authority that denies one lit- 
igant the benefit of a fact germane to 
the gist of his suit or action, even 
though at variance with some inciden- 
tal allegation in his pleading, when 
such fact has been solemnly admitted 
to be true by his adversary, and agreed, 
without exception, to be considered as 
part of the evidence lin the case. Zim- 
merman Co. V. Dey, 121 Va. 709, »3 
S. E. 597. 

Where an action of ejectment is 
brought and submitted upon an agreed 
statement of 'facts, and before the deci- 
sion thereof the defendants move to 
wiithdraw such agreed statement of 
facts, and file a "bill in equity setting 
up a matter of equity not cognizable 



in such action, and praying for an in- 
junction restraining the prosecution of 
the action of ejectment, such agreed 
statement of facts, will not estop them 
from setting up such equity and en- 
joining the prosecution of such action. 
Gentry v. Poteet, 59 W. Va. 408, 53 
S. E. 787. 

Power of Court. — In considering a 
special verdict, no inference whatever 
as to a matter of fact, but only infer- 
ences of law and of legal construction, 
are allowable. McGhee & Co. v. Cox, 
116 Va. 718, 82 S. E. 701. 

Review ol Proceedings- — Where a 
cause has been tried on an agreed 
statement of facts by the court in lieu 
of a jury, and judgment rendered for 
the plaintiff, upon writ of error the evi- 
dence will be considered as though the 
defendant was a demurrant thereto, 
and if insufficient to warrant the judg- 
ment, reversal and judgment nil capiat 
must follow. Hatfield v. Cabell County 
Court, 75 W. Va. 595, 84 S. E. 336. 



AGREEMENT.— See post, CONTRACTS. 



AGRICULTURE. 

CROSS REFERENCES. 

Sec the title AGRICULTURE, vol. 1, p. 288, and references there given. In 
addition, see post, ANIMALS; CROPS; FERTILIZER; FOOD; WEIGHTS 
AND MEASURES. As to teaching agriculture, see post, COLLEGES AND 
UNIVERSITIES; SCHOOLS. As to taking or damaging crops, see post, 
CROPS. 



Department of Agriculture. — Va. 

Const. §§ 143-146; Va. Code 1919, §§ 
1099-1109, ,3441; Barnes W. Va. Code, 
pp. 148, 149, ch. 15D, §§ 1-8. 

State Entomologist — Insects and Dis- 
eases of Plants and Trees — Nursery 
Stock.— Va. Code 1919, §§ 870-905, 
1287; Acts >1918, p. 302, Pollard's Code, 
p. 401; Barnes W. Va. Code, pp. 892-900, 



ch. 62A, §§ 1-23; W. Va. Acts 1917. 
Reg. 6ess., ch. 17; W. Va. Code Suppl. 

1918, §§ 3534a-3534v. 

Cedar Rust Law.—Va. Code 1919, § 
885, let seq. 1 

Same— Validity and Constitatioiiality. 
— Acts 1914, p. 49, et seq. (Va. Code 

1919, §§ 885, et seq.), commonly known 
as the cedar rust law, providing for 



144 



Agriculture 



145 



the destruction of red cedar trees 
which are or may be the source, har- 
bor or host platit for the communica- 
ble plant disease commonly known as 
"orange" or ''cedar rust" of the apple, 
is a valid exercise of the police power 
of the state and does not violate the 
constitutional guarantees of due proc- 
ess of law and ithe equal protection of 
the laws. Bowman v. Virgania State 
Entomologist, 128 Va. 351, 105 S. E. 
141. 

The cedar rust law is not invalid be- 
cause of its "local option" feature con- 
tained in § 9. Bowman v. Viirginia 
State Entomologist, 128 Va. 351, 103 
S. E. 141. 

The cedar rust law as not invaliid un- 
der § 52, Constitution of 1902, which 
provides that no law shall embrace 
more than one object, which shall be 
expressed lin its title. Bowman v, Vir- 
ginia State Entomologist, 128 Va. 351, 
105 S. E. 141. I 

Nuisances. — The cedar trees which 
fall within the condemnation of the 
cedar rust law would not have consti- 
tuted either a public or a private nui- 
sance at common law. Bowman v. 
Virginia State Entomologist, 128 Va. 
351, 105 S. E. 141. 

Evidence as to Menace of Cedar 
Trees. — Evidence showing the circum- 
stances which in fact existed in the im- 
mediate locality in question and in 
other adjacent localities in the valley 
and Piedmont sections of Virginia, 
which rendered the red cedar trees in- 
volved in the proceedings a real men- 
ace to the apple orchard industry held 
admissible. Bowman v, Virginia State 
Entomologist, 12« Va. 351, 105 S. E. 
141. 

Provision for Assessment of Owners 
of Apple Orchards. — In proceedings 
on appeal to the circuit court by the 
owners of cedar trees, as provided by 
the cedar rust law, the question of the 
constitutionality of § 8 of the cedar 
rust law, providing for the annual as- 
sessment against owners of apple or- 
—10 



chards, to provide a fund to reimburse 
the county for costs and damages paid 
out to the owners of red cedar trees 
destroyed under the statute, does not 
arise, as the owners are not dependent 
on these provisions for payment of the 
damages awarded them, the county 
' and the orchard owners being alone 
I concerned with the validity of these 
provisions. Moreover, in_ the instant 
case, certain persons had agreed to 
pay the damages in the event the stat- 
.ute was held to be valid, and the own- 
ers have accepted this agreement as 
a satisfactory guarantee to them. 
Bowman v. Virginia State Entomolo- 
gist, 128 Va. 351, 105 S. E. 141. 

Agricultural Seed. — Va. Code 1919, 
§§ 1138-1154; W. Va. Acts 1919, Reg. 
Sess.y ch. 103, 'p. 362, amending Barnes 
W. Va. Code, pp. 163-166, ch. 15D, §§ 
43-56. 

Agricultural Experiment Stations. — 
Va. Code 1919, § 869. 

Acts 1920, p. 390, Pollard's Code 1920, 
pp. 749-751. 

Barnes W. Va. .Code, p. 600, ch. 45, 
§ 176a, as amended by Acts 1919, p. 
105, ch. 2, § 144. 

County Agriculturail Extension Work 
— ^Agricultural Agents. — Va. Code 
1919, §§ 921-925; Barnes W. Va. Code, 
p. 464, ch. 39, § 28, as amended by Acts 
1921, p. 457. 

Amount Board of Supervisors May 
Expend to Promote Agriculture. — Va. 
Code of 1919, § 2734. 

Inspection and Statutory Provisions 
Concerning Tobacco. — Va. Code 1919, 
§§ 1348-1361, 1366-1399; Va. Code 1919. 
§§ 1362-1365, as amended by Pollard's 
Code 1920, p. 64. 

Analysis of Soil.— Va. Code 1919, § 
1280. 

Grading Apples. — W. Va. Acts 1917, 
Reg. Sess., ch. 24; W. Va. Code Suppl. 

1918, §§ 3412>^-3412^k. 
Demonstration Community Packing 

House.— W. Va. Acts 1919, p. 148. 
Hemp— How Labeled. — Va. Code 

1919, § 1427. 

Bureau of Markets. — W. Va. Acts 



146 



AUBI 



1917, Reg. Sess., ch. 10; W. Va. Code 
Suppl. 1918, §§ 428a-428j. 

side of Fann Produce^— Va. Code 
1»1», §§ 1250-1256; §§ 1257-1265 as 
amended by Acts 1920, p. 331; Pollard's 
Code 1980, pp. 60-63. 

Collection of Specimens of Natural 
History.— Va. Code 1919, § 1282. 

Geodetic and Geological Survey. — 
Barnes W. Va. Code, pp. 146, 147, ch. 
15c, §§ 1-9. 

Agricultural Assodationa. — W. Va. 
Acts 1921, Reg. Sess., ch. 121, pp. 458- 
465. 

Incorporation of Agricultural Socie- 
ties. — Barnes W. Va. Code, p. 740, ch. 
54, § 2, ch. 5. 



Corporation Chartered for Agricul- 
tural Purposes Exempt from License 
TaaBr— Barnes W. Va. Code, p. 394, 
ch. 32, § 138. 

Agricultural Fairs. — W. Va. Acts 
1921, Reg. Sess., ch. 122, pp. 465-467; 
Barnes W. Va. Code, p. 1223, ch. 149, 
§§ 22a (1); 22a (4). 
• As to amusement privileges at fairs, 
see post, THEATERS AND SHOWS. 

Diseases among Honey Bees. — W. 
Va. Code Supp. 1918, §§ 440a-440<i, as 
amended by Acts 1921, p. 468. 

Digging or Prospecting for Ginseng 
or Oilier Medkdl Roots on Lands of 
Another. — Barnes Code, ch. 145, § 28b. 



AID. — "Though the word *aid* does not necessarily embrace or imply guilty 
knowledge or wrongful purpose, yet when supplemented by *abet', as both are 
used in the statute and indictments, they jointly indicate such knowledge and 
purpose and the intention to encourage the commission of the offense." State 
V, Ankrom. 86 W. Va. 570, 574, 103 S. E. 925. 

AIDER AND ABETTOR.— See ante, ACCOMPLICES AND ACCES- 
SORIES. 

AIDER BY VERDICT.— See post, AMENDMENTS; APPEAL AND 
ERROR. 

ALCOHOL. — "The words alcohol and whiskey would likely import intox- 
icating drink, without allegation or proof." State v. Lett, 63 W. Va. 665, 667, 
60 S. E. 782. See post, INTOXICATING LIQUORS. 

ALIAS WRITS.— See post, ATTACHMENT AND GARNISHMENT; EXE- 
CUTIONS; LIMITATION OF ACTIONS; SUMMONS AND PROCESS. 



ALIBL 

CROSS REFERENCES. 

See the title ALIBI, vol. 1, p. 290, and references there given. 



Effect of Failure of AUbi^Where 
circumstantial evidence tends strongly 
to prove that the prisoner is guilty of 
the murder of which he is accused, his 
effort to prove, by unsatisfactory evi- 
dence, an alibi, or that he was not the 



owner of the gun with which the mur- 
der was committed, at the time of its 
commission, leaves him in a worse 
condition than af he had not made the 
effort. Hardy v. Commonwealth, 110 
Va. 910, 67 S. E. i522. 



AL 



IL What Determines Belation. 

A. Birth. 

m. Bights, Powers and Liabilities. 

l4A. In General. 

A. In Regard to Person. 

3. Suing and Being Sued. 

B. In Regard to Real Property. 

1. Right to Acquire. 

J^a. In General. 

b. Modes of Acquisition. 

2. Power to Hold. 

3. Right to Convey. 

VI. Pleading and Practice. 

CROSS REFERENCES. 

See the title ALIENS, vol. 1, p. 291, and references there given. In addi- 
tion, see post, PENSIONS. As to alien enemies, see generally, post, WAR. 
As to status of resident aliens of belligerent nations, see 3 Va. hsLVf Reg., N. S., 
81. As to rights as litigants, see 3 Va. Law Reg., N. S., 93. As to disposition 
of lion-resident aliens* share in estate, see 3 Va. Law Reg., N. S., 853. 



II. WHAT DETERMINES RELA- 

TION. 

A. BIRTH. 

"The fact admitted, that plaintiff was 
born in Austria, does not prove alien- 
age." Barna v. Gleason Coal Co., 83 
W. Va. 216, 225, 98 S. E. 158. 

III. RIGHTS, POWERS AND LIA- 

BILITIES. 

I/2A. IN GENERAL. 

Naturalization. — Va. Code, 1919, § 
62; W. Va. Const., Art. 2, §§ 3, 5. See 
post. CITIZENSHIP. 

Escheated Lands.— Va. Code 1919, §§ 
506, 514; Barnes Code, ch. 69, §§ 16, 
24. See post, ESCHEAT. 

Hunting License.— Va. Code 1919, § 
3331. See post, GAME AND GAME 
LAWS; LICENSES. 

May Not Own Dog^W. Va. Supp. 
1918. § 3467c. 

Inheritance^— Va. Code 1919, § 5267; 
Barnes Code, ch. 70, §§ 1, 2. Sec post, 
DESCENT AND DISTRIBUTION. 

In GeneraL — ^'At common law, an 
alien domiciled in a country is entitled 



to the protection of its laws, and in re- 
turn therefor owes temporary alle- 
giance to the country of his adoption 
during the period of his residence. He 
is subject to the law, as well as enti- 
tled to 4ts protection, and is liable to 
be tried and punished for crime; and 
may sue and be impleaded in the 
proper courts to the same extent as a 
citizen. The general doctrine is stated 
thus: *While the rights of aliens de- 
pend entirely upon the municipal law 
of the state or nation, or the rights 
which are given aliens by international 
law, in the United States, except as to 
certain political and municipal rights to 
which citizens only are entitled, resi- 
dent alien friends have practically all 
and the same rights and privileges as 
citizens. These rights and privileges 
include both personal rights — such as 
the right 'to dwell safely in the coun- 
try and the rights of protection to per- 
son, reputation and other relative 
rights — and property rights.* 2 Cyc. 89, 
and authorities cited." Pocahontas 
Collieries Co. v. Rukas, 104 Va. 278, 
282, 51 S. E. '449. 



147 



148 



Aliens 



A. IN REGARD TO PERSON. 
See ante, "In General," III, J4A. 

8. Suing and Being Sued. 

Right to Sue. — As a general rule, an 
alien, not an enemy, may maintain an 
the proper courts suits to Vindicate his 
rights and redress his wrongs, includ- 
ing actions for personal injuries. Squil- 
ache V. Tidewater Coal, etc., Co., 64 
W. Va. 837, 62 S. E. 446; Barna v. 
Gleason Coal Co., 83 W. Va. 216, 225, 
98 :S. E. 158. 

Right of Action for Death by 
Wrongful Act. — Resident alien friends 
are entitled to the benefits and reme- 
dies afforded by §§ 2902 and 2904 of 
the Code of 1887 (§§ 15786, 5788, Va. 
Code 1919), giving a right of action 
for death by wrongful act or neglect, 
the policy of our laws is to extend 
rather than abridge the liberal policy 
of the common law under which an 
alien friend may sue and l>e impleaded 
to the same extent as a citizen. Poca- 
hontas Collieries Co. v, Rukas, 104 Va. 
278, 51 S. E. 449. 

Aliens Resident in a Foreign Coun- 
try. — The action for death by the 
wrongful act or neglect of another 
given by Code of 1887, § 2902 (§ 5786, 
Va. Code 1919), may be maintained for 
the benefit of alien relatives resident in 
a foredgn country, although they are 
not expressly named in the statute. 
The language is general, and, on prin- 
ciple, includes nonresident aliens as 
well as citizens or residents. Low 
Moor Iron Co. v. La Bianca, 106 Va. 
83, 55 S. 'E. 532. 

r>. IN REGARD TO REAL PROP- 
ERTY. 

1. Right to Acquire. 
See post, "Power to Hold," III, B, 2. 

^a. In General. 

Aliens May Acquire, Hold and 
Transmit Real Estate.— Va. Code 1919, 
§ 66; Barnes Code, ch. 70, §§1,2. 



b. Modes of Acquisition. 

Sec ante, "In General," III, B, 1, i/4a. 

Inheritance by Aliens. — Va. Code 
1919, § 5264; Barnes Code, ch. 70, §§ 1, 
2; ch. 78 § 4 (alienage of ancestor). 

By Purchase or Descent. — Alien 
friends are included in our statute of 
descents, and by § 43 of the Code (Va. 
Code 1919, § 66), are permitted to ac- 
quire by purchase or descent, and hold 
real estate in the same manner and to 
the same extent as a citizen. Poca- 
hontas Collieries Co. v. Rukas, 104 Va. 
278, 283,61 S. E. 449; Squilache v. Tide- 
water Coal, etc., Co., 64 W. Va. 337, 
340, 62 S. E. 446. 

2. Power to Hold. 

See ante, "Modes of Acquisition," 
Ilf, B, 1, b. 

**An alien, Jnot an enemy, may take 
and hold, by inheritance or purchase, 
real estate within this state. Such 
right is written in our constitution and 
statute law. Const., § 5, art. II; Code 
1906, §§ 3018, 3019" (Barnes Code, ch. 
70, §§ 1, 2); Squilache v. Tidewater 
Coal, etc., Ca, 64 W. Va. 337, 340, 62 
,S. E. 446. 

3. Right to Convey. 

Barnes Code ch. 70, § 2; Va. Code 
1919, § 66. 

Alien friends are permitted to trans- 
mit real estate in the same manner and 
to the same extent as a citizen. Poca- 
hontas Collieries Co. v. Rukas, 104 Va. 
278, 283, 51 S. E. 449. 

VI. PLEADING AND PRACTICE. 
Necessity for Pleading Alienage. — 

The fact appearing during the trial 
that the plaintiff, who has resided in 
this country for many years, was born 
in a country against which since suit 
brought this country has declared war. 
does not prove alienage. The fact that 
plaintiff is an alien enemy is defensive 
and ordinarily unavailing without 
timely plea. Barna v. Gleason Coal 
Co., 83 W. Va. 216, 98 S. E. 158. 



ALIGNMENT. — The word alignment means an adjustment to a line, or the 
state of being so adjusted. Harner v. Monoingalia County Court, 80 W. Va. 
626, 92 S. E. 781. 



ALIMONY, 

I. Definition, uo. 
n. Origin of Alimony, i49. 
m. When Alimony May Be Recovered, i49. 

J^A. In General. 

A. Marriage a Prerequisite, 150. 

B. Alimony May Be Granted Independently of Suit for Divorce, 150. 

C. Wife May Forfeit By Misconduct, 150. 

E. Court Will Not Allow Alimony Where Wife Is Well Off, 151. 

F. Husband's Poverty, 151. 

IV. Amount, i5i. 

A. General Rule, 151. 

B. Discretion of Court, 151. 

C. Property of Husband Subject to Alimony, 152. 

D. Instances of Amount Allowed, 153. 

E. Attorneys* Fees, 153. 

VI. . Alimony Pendente Lite, i53. 
Vm. Vacation, 154. 
IZ. Procedure, i54. 

A. In General, 154. 

B. Judgment or Decree, 154. 

1. In General, 154. 

2. Validity, 155. 

3. Time and Duration of Allowance of Alimony, 155. 

4. Modification of Decree, 155. 

5. Lien, 156. 

6. Enforcement, 156. 

CROSS REFERENCES. 

Sec the title ALIMONY, vol. 1, p. 297, and references there given. In addi- 
tion, see post, APPEAL AND ERROR; DIVORCE; DOWER; FORMER 
ADJUDICATION OR RES ADJUDICATA; HUSBAND AND WIFE; 
JUDGMENTS AND DECREES. 



L DEFINITION. 

"Alimony in general is the sum al- 
lowed the wife in lieu of dower, and as 
compensation for the treatment she re- 
ceived," * * *. Sperry v. Sperry, 80 
W. Va. 142, 156, 93 S. E. 574. 

II. ORIGIN OF ALIMONY. 

The power 'of courts of equity to de- 
cree alimony did not originate in any 
statute. It is a power inherent in them. 
It had its origin in the legal obligation 
of the husband, incident to the mar- 
riage state, to maintain his wife in a 



manner suited to his means and social 
position. Reynolds v. Reynolds, 68 W. 
Va. 15, 24, 69 S. E. 381. 

III. WHEN ALIMONY MAY BE 
RECOVERED. 

^A. 'IN GENERAL. 

A wife is not bound to go into the 
corpus of her estate to maiintain her- 
self or to prosecute or defend a suit 
for divorce. If she has ample income 
from her estate, to maintain herself 
and prosecute her suit, the court might 
within its discretion deny her tempo- 



149 



150 



Alimony 



rary alimony and suit money; but 
where Iher income is inadequate ft>r 
these purposes, the necessity which 
the statute contemplates is present. 
Kittle V, Kittle, 86 W. Va. 46, 55, 102 
S. E. 799. 

When a judicial decree of separation 
from bed and board has once been pro- 
nounced, the common-law obligation 
to support the wife, if not entirely ab- 
rogated, is greatly modified. Alimony 
then becomes the regular measure of 
the husband's obligations. Chapman 
V. Parsons, 66 W. Va. 307, 312, 66 S. 
E. 461. 

A. 'MARRIAGE A PREREQUISITE. 

Alimony is only cognizable as be- 
tween parties united by a marital rela- 
tion that imposes upon the husband 
the legjal duty to 'support the wife. 
Chapman v. Parsons, 66 W. Va. 307, 
66 S. E. 461. 

B. ALIMONY MAY BE GRANTED 

INDEPENDENTLY OF SUIT 
FOR DIVORCE. 

A wife who has been abandoned and 
denied support by her husband may 
have a decree for alimony without a 
divorce, and such relief may be granted 
her in a suit for divorce brought by a 
husband, on a prayer in her answer 
therefor as affirmative relief. Huff v. 
HuflF, 73 W. Va, 330, 80 S. E. 846. 

An independent <suit for alimony lies 
in equity, and the court has jurisdiction 
to decree the same although there is no 
prayer in the bill for a divorce and no 
jurisdiction in the courts of this state 
to grant the complainant a divorce. 
JolliflFe V. Jolliffe, 10 Va, L. Reg. 1098. 

A suit for divorce is a suit to end 
the ntarital relatfion in whole or in 
part. A suit for alnmony proper is to 
enforce the obligations incident to the 
continuance of the relation, and al- 
though similar inquiries arise in both 
suits, it is neither in form or substance 
a suit for 'a divorce. JolliflFe v, JolliflFe, 
10 Va. L. Reg. 1098. 

An independent suit for alimony is 
not controlled by the statute applica- 



ble to divorce 6uits as to residence of 
the parties. Equity has jurisdiction 
for the purposes of attachment and to 
set aside fraudulent conveyances, al- 
though neither party is a resident of 
this -state, and the marriage and co- 
habitation was in another state and the 
breach of the marital duty is alleged 
to have occurred in another state. Jol- 
liflFe p. JolliflFe, 10 Va. L. Reg. 1098. 

Suit for Alimony, Subsequent Suit 
for Divorce in Another State. — ^The ju- 
risdiction of the court will not be 
ousted by the fact that subsequent to 
its institution the defendant iiled in a 
California court his *suit for divorce, 
and in her answer the plaintiff asked 
for alimony. JolliflFe v, JolliflFe, 10 Va. 
L. Reg. 1098. 

« 

C. WIFE MAY FORFEIT BY MIS- 
CONDUCT. 

Adultery subsequently occurring is 

sufficient to cut off alimony. Chapman 
r. Parsons, 66 W. Va. 307, 66 S. E. 
461. 

A *wife guilty of desertion is never 
entitled to alimony. The decree estab- 
lished the fact of her desertion. Until 
that decree is successfully assailed, she 
has no right to alimony. Bishop on 
Mar., (Div. and Sep., § 861. Chapman 
V. Parsons, 66 W. Va. 307, 310, 66 S. 
E. 461. 

A wife who has voluntarily aban- 
doned her husband should not have a 
decree 'for her separate maintenance, 
unless her abandonment of him was, 
without fault, rendered necessary for 
her safety and happiness, and was con- 
sistent with social order and public 
policy. Hay nor v. Haynor, 112 Va. 
123, 70 S. E. 531. 

Previous Unchastity. — In a suit for 
divorce and alimony, the husband had 
had previous illicit relations with the 
wife. At the time of the marriage she 
was with child, and she alleged that 
the husband was the child's father. He 
claimed that he learned immediately 
after the ceremony of 'marriage, but 
before the marriage was consummated. 



AUMONY 



151 



that the child was not his. Held: That 
the consummation of the marriage by 
the husband 'with knowledge condoned 
all the wife's previous lapses from vir- 
tue. West r. West, 126 Va. «96, 101 
S. E. 876. 

As a result of the marriage and con- 
donation, as set out in the preceding 
paragraph, the husband incurred re- 
sponsibilities from which he could not 
escape. Among these responsibilities 
were his duty, under Code of 1919, § 
5107, to pay the sums necessary for the 
manntenance of the woman and to en- 
able her to carry on her suit for di- 
vorce, and, under § 5111 of the Code of 
1919, to pay such proper permanent 
alimony upon the (dissolution of the 
marriage as the court might decree. 
West V, West, 126 Va. 696, 101 S. E. 
876. 

Indiscretioiis of the wife after de- 
sertion of her by the husband of a 
trivial character, or which would not 
entitle the husband to a decree of di- 
vorce from bed and board ag^ainst her, 
will "not justify the court, in a suit by 
her against him for divorce, in denying 
her temporary or permanent alimony 
and suit money. Kittle v. Kittle, 80 
W. Va. 46, 102 S. E. 799. 

E. COURT WILL NOT ALLOW 
ALIMONY WHERE WIFE IS 
WELL OFF. 

See ante, "In General," III«, J^A; 
post, ^'General Rule," IV, A. 

The fact that the wife has real and 
personal estate, but practically no in- 
come therefrom, from which she can 
derive support, will not warrant the 
court, in a suit by her, in denying her 
temporary or permanent alimony or 
suit money. Kittle v. Kittle, 86 W. 
Va. 46, 102 S. E. 799. 

F. HUSBAND'S POVERTY. 

See post, "Enforcement," IX, B, 6. 

It has been decided that when the 
suit is by the wlifet, the defendant's 
poverty may be pleaded in defense of 
her application for suit and alimony. 



State V. Kittle, 86 W. Va. 687, 689, 
164 S. E. 44. 

"If the inability of the relator to pay 
he amount decreed against him or 
any part thereof can be clearly estab- 
lished, whether it existed at the date 
of the order or not, he may be entitled 
to a discharge from custody." Ex parte 
Beavers, 80 W. Va. Q4, 37, 91 S. E. 
1076. 

IV. AMOUNT. 

A. GENERAL RULE. 

"As a general rule the basis for all 
decrees for alimony is the income of 
the husband, and the amount decreed 
should be in some just proportion to 
his ability to earn money and as will 
enable the wife to maintain herself 
comfortably in her station in life. Rey- 
nolds V. Reynolds, 68 W. Va. 16, 69 S. 
E. 381; S. a, 72 W. Va. 349, 78 S. 'E. 
360; Henrie v. Henrie, 71 W. Va. 131, 

; 76 S. E. 837; Goff v. Goff, 60 W. Va. 

' 9, Bl, 63 S. :E. 769; Coger v. Coger, 48 
W. Va. 135, 36 S. E. 823; Wass v, 
Wass, 42 W. Va. 460, 464, &6 S. E. 
440. Ordinarily the wife's estate and 
capacity to earn money, where the hus- 
band's income is ample and sufficdent to 
make provisions for her, are tiot ques- 
tions for consideration. Sperry v. 
Sperry, 80 W. Va. 142, 166, 92 S. E. 
574; Cralle v. Cralle, 84 Va. 198, 200, 
6 S. E. 12; Miller r. Miller, 92 Va. 196, 
23 S. E. 232; Harris v, Harris (72 Va.), 
31 Gratt. 13, 17; McKinney *v McKin- 
ney, 80 W. Va. 745, 93 S. E. 831; Kit- 
tle >v. Kittle, »6 W. Va. 46, 64, 102 S. 
E. 799. 

"Alimony in general is the sum al- 
lowed the wife in lieu of dower, and as 
compensation for the treatment she re- 
ceived, and the amount of the allow- 
ance should be reasonably proportion- 
ate to her loss." Sperry v. Sperry, 80 
W. Va. 142, 156, 92 S. E. 574. 

B. DISCRETION kDF COURT. 

See post, "Property of Husband Sub- 
ject to Alimony," IV, C; "Alimony 
Pendente Lite," VI. And see Va. Code 



152 



Alimony 



1919, § 5111; Barnes Code, ch. 64, § 11. 

The trial court has a very broad dis- 
cretion in fixing the amount of ali- 
mony, and the appellate court will not 
interfere with such discretion unless it 
is clear that some injustice has been 
done. Lovegrove v. Lovegrove, 128 
Va. 449, 104 S. E. 804; Henrie v. Hen- 
rie, 71 W. Va. 131, 76 S. E. 837; Rey- 
nolds V. Reynolds, 72 W. Va. 349, 352, 
78 S. E. 360. As to review of discre- 
tion, see post, APPEAL AND ER- 
ROR. 

. Antenuptial and Postnuptial Con- 
tracts. — Even bona fide antenuptial and 
postnuptial contracts, valid in all other 
respects, can not bind the action of the 
court on the subject of alimony. The 
court will usually adopt such contract 
provisions, if just and reasonable; 
otherwise, at will not do so. Cumming 
V, Cumming, 127 Va. 16, 102 S. E. 
572. 

In decreeing to a wife for the sup- 
port of herself and the children of her- 
self and husband, one-half of the 
husband's salary income, a court does 
not abuse its discretion nor commit er- 
ror, 'when it appears that the husband 
boards with his parents, that it is 
doubtful whether he pays them for his 
board, that, although indebted, he has 
been paying little or nothing on his 
debts out of his salary, that a part of 
his indebtedness is due the wife and 
that he makes liberal presents to rela- 
tives whose financial circumstances are 
exceptionally good. McKinney v. Mc- 
Kiinney, 80 W. Va. 745, 93 S. E. 831. 

C. PROPERTY OF HUSBAND 
SUBJECT TO ALIMONY. 

See ante, "General Rule," IV, A; 
post, "Instances of Amount Allowed," 
IV, D. 

Income. — The general rule is that 
the income of the husband, whether 
derived or to be derived from his per- 
sonal, exertions, or from permanent 
property, or from both, is the fund 
from which alimony is derived^ and 
from which there should be a personal 



decree, the amount to be determined 
by the circumstances of each particular 
case. Reynolds v. Reynolds, 68 W. Va. 
15, 69 S. E. 381. 

Specific Portions of ' Property. — 
Without some special facts or circum- 
stances calling for that relief it is not 
error on decreeing divorce to a wife 
not ito set ofi to her as alimony ^ spe- 
cific portion of the property of her hus- 
band. As a general rule alimony is 
payable out of the earnings of the 
husband or the income^ from his prop- 
erty. Sperry v. Sperry, 80 W. Va. 142, 
92 .8. E. )574. 

Title to Real Estate.— It is error for 
a court, upon decreedng a divorce from 
bed and board, to vest the title to the 
husband's real estate in fee in the wife 
as permanent alimony, unless there be 
special circumstances calling for such 
decree. Reynolds v. ^Reynolds, 68 W. 
Va. 15, 69 S. E. 381. 

The better rule, according to the 
authorities, is .to give the wife an an- 
nual allowance, or life estate in the 
realty, instead of decreeing her the 
realty in fee. Reynolds v, Reynolds, 68 
W. Va. 15, 23, 69 S. E. 381. 

Specific Portions of ReeA Estate.— 
The general rule is that a wife fts not 
entitled to have any specific parcel of 
real estate assigned as her own. Ali- 
mony is usually an allowance in money 
out of the husband's estate, but not 
the estate dtself. Although the deci- 
sions are not harmonious, the very 
great weight of authority is to the ef- 
fect that iunless there is express statu- 
tory Authority therefor, the court pos- 
sesses no power to vest in the wife ti- 
tle to a specific portion of the hus- 
band's real estate as alimony. Love- 
grove V, Lovegrove, 128 Va. 449, 104 S. 
E. 804. 

In the instant ^ase the wife com- 
plained of the allowance of $30 per 
month alimony, and urged that that 
portion of the decree should be re- 
versed, and that she should be allowed 
to Temain with her infant children in 
the residence of her husband. The 



Alimony 



153 



husband's property was not estimated 
to exceed $5,000 in (value and his earn- 
ing capacity was $2.50 per day. Held: 
That while not deciding that there 
could be no case in Virginia in which 
the trial court, in the exercise of its 
discretion, could permit a wife with her 
infant children to occupy a specific 
dwelling /house owned by her husband, 
yet there was no reason, when all the 
circumstances were considered, for de- 
parting from the •general rule, as to the 
right of a wife upon divorce in her 
husband's realty. Lovegrove v. Love- 
grove, a28 IVa. 449, 104 S. E. 804. 

D. INSTANCES OF AMOUNT AL- 
LOWED. 

Defendant in this case being able- 
bodied land earning sixty-five . dollars 
per month, and owning a house and 
lot and a vacant lot estimated to be 
worth at least three thousand dollars 
and some money, twenty-four dollars 
per month decreed to the plaiintiflf for 
alimony is not unreasonable. /Deusen- 
berry v, Deusenberry, 82 W. Va. 135, 
95 S. IE. 665. 

In Kiser v. Kiser, 108 Va. 730, 62 S. 

E. 936, the court without deciding 
whether permanent alimony may be 
granted to a wife where the divorce 
prayed for is refused, a decree against 
the husband for $350 for "permanent 
alimony" and for the value of the 
wife's contingent right of dower in a 
tract of land which the husband had 
sold for $1,680, and which the wife is 
required to release, was not disturbed, 
where the record did not show the 
value of said contingent right of dower, 
nor disclose the facts upon which an 
accurate computation could be made 
and where the amount decreed perhaps 
would tiot have been excessive if the 
decree in her favor had been based 
wholly upon the value of her contin- 
gent right of dower. 

Half of Salary. — A wife having a 
considerable income of her own, has no 
legal or just cause of complaint against 
a decree awarding to her, for the sup- 



port of herself and children, practically 
one-half of her husband's moderate 
salary, he being indebted in an amount 
consaderably in excess of the value of 
his estate. McKinney v. McKinney, 80 
W. Va. 745, 93 S. 'E. 831. 

Suit Money — Counsel Fees. — ^The al- 
lowance, in the case of judgment, to 
the wife, of the Isum of $225.00 payable 
in three monthly instalments for suit 
money, land of $150.00 for counsel fees, 
is a reasonable) allowcmce. Craig v. 
Craig, 118 Va. 294, 87 S. E. 731. See 
also, Burton v. Burton, 118 Va. 619, 88 
S. E. «1. 

E. ATTORNEYS' FEES. 

See ante, "Instances of Amount Al- 
lowed," IV, D. 

Disposition of iCounsel Fees on Ap- 
pcaL — On an appeal from a decree dis- 
missing a bill for divorce, 'and also 
dismissing a cross-bill of the wife for 
alimony, this court, on affirming the 
decree, will not pass on an application 
for the allowance of counsel fees for 
services rendered the appellee in this 
court, but will remand the cause, with 
leave to counsel for the appellee to 
prosecute their claim for compensation 
before the trial court, which ds in a 
better position than this court to in- 
quire into and do what is right and just 
between the 'parties in the first instance, 
with the right of appeal to this cdurt 
if a proper case shall be made for Its 
exercise. Craig v, Craig, 115 Va. 764, 
80 B. iE. 507. 

VI. ALIMONY iPENDENTE LITE. 

See ante, "Discretion of Court," IV, 
B. And sec IVa. Code 1919, § 5107; 
Barnes Code, ch. 64, f§ 9. 

In a isiiit for divorce the uniform 
practice is to allow a wife who is with- 
out means of her own ta reasonable sum 
to be padd by the husband, for her tem- 
porary support, counsel fees, and costs 
of litigration. Under the circumstances 
of this case one hundred and fifty dol- 
lars is iiot an excessive allowance for 
such purposes. Kiser v. Kdser, 108 IVa. 
730, -62 S. E. 936. 



154 



Alimony 



"Temporary alimony is incidental to 
a divorce suit. It is maintenance for 
the wife pending a suit which is to de- 
termine whether there is further duty 
upon the husband to maintain the wife. 
In our jurisprudence it is the creature 
of the statutes relating to divorce and 
divorce proceedings. ♦ ♦ *, The only 
provision justifying maintenance pend- 
ing a suit is Code, chap. 64, § 9, where- 
in it is provided that it may be awarded 
pending a divorce suit." Chapman v. 
Parsons, 66 W. Va. 307, 311, 66 S. E. 
461. 

Suit to Set Aside Divorce. — There is 
no jurisdiction to award alimony as be- 
tween parties divorced from bed and 
board, as incident to the pendency of 
an independent suit to set aside the 
decree of divorce for fraud, and before 
the decree is successfully assailed. 
Chapman v. Parsons, 66 W. Va. 307, 
66 S. E. 461. 

Effect of Failure to Pay. — A court 
has no power to strike out and disre- 
gard depositions filed by a defendant 
in defense of a teuit for divorce, for 
failure to pay money required of him 
to enable his wife to prosecute her suit 
and for temporary alimony, and pass 
final decree of divorce against him. 
Such decree is not due process of law. 
Trough V, Trough, 59 W. Va. 464, 53 
S..E. 630. 

Jurisdiction. — "Our statute on di- 
vorce procedure vests jurisdiction in 
the circuit court to make orders for 
suit money and maintenance. Code 
1906, chap. 64, § 9. * * *. The stat- 
ute plainly contemplates that as long 
as the contest in relation to a divorce 
is being litigated, the circuit court 
shall have power to make proper or- 
ders for suit money and maintenance, 
•even though the litigation is being con- 
tinued on appeal." Maxwell v. Max- 
well, 67 W. Va. 119, 67 S. E. 379. 

VIII. VACATION. 

See ante, ^'Alimony Pendente Lite," 
VI. 

Proceedings in Vacation. — A judge 



can in vacation make an order for tem- 
porary alimony under West Virginia 
Code, ch. 64, § 9; but the adverse party 
has right to defend a motion for tem- 
porary alimony. As he has right to 
defend the motion, it follows that he 
must have notice of a motion to be 
heard in vacation. Keller v. Keller, 58 
W. Va. 3^5, 326, 52 S. E. 318. 

IX. PROCEDURE. 

See ante, "Alimony Pendente Lite,'* 
VI. 

A. IN GENERAL. 

Recovery against Convict. — ^Va. Code 
1919, § 6042. 

Maintenance — Overruling Motion as 
to Commissioner's Report. — ^The over- 
ruling of a motion to recommit the report 
of a Commissioner, recommending an 
amount to be decreed, in a divorce 
suit, to the wife, for the maintenance 
of herself and children, based upon an 
affidavit that the husband's salary has 
been reduced, since the report was 
made up, is justified by a disclosure 
in the record that the employer so re- 
ducing the salary is a corporation of 
which the husband is the manager, 
and that his father owns a large por- 
tion of its capital stock and strongly 
sympathizes with the son in the liti- 
gation between him and his wife. Mc- 
Kinney v. McKinney, 80 W. Va. 745, 
93 S. E. 831. 

B. JUDGMENT OR DECREE. 

1. In GeneraL 

Dower and Marital Rights* — Where 
a wife is decreed a divorce a mensa, 
tHe court pronouncing such decree can 
not lawfully deprive her of her dower 
or other marital rights in the husband's 
estate. So long as the bonds of mat- 
rimony remain unbroken, she can not 
be deprived of such marital rights in 
her husband's property. Kittle v. Kit- 
tle, 86 W. Va. 46, 103 S. E. 799. 

Alimony in Lieu of Dower. — On 
decreeing divorce a Vinculo to a 
wife the court may, under § 11, chapter 



AUMONY 



155 



64, Code 1913, provide that the ali- 
mony decreed shall be in lieu of dower 
in the lands of the husband. Sperry v. 
Sperry, 80 W. Va. 142, 92 S. E. 574. 

%. VaUdity. 

A decree for alimony is erroneous 
where it provides that the acceptance 
by the wife of any portion of the ali- 
mony shall be an acquiiescence "in the 
decree of divorce and bar and preclude 
her right to an appeal from it, and that 
an application for an appeal from the de- 
cree shall render the provision for ali- 
mony ineffectual, inoperative and void. 
The latter provisions are coercive in 
their operation and effect and unduly 
restrain the liberty and right of the ap- 
pellant as a litigant." Huff v. Huff, 73 
W. Va. 330, 335, 80 S. E. 846. 

3. Time and Duration of Allowance of 
Alimony. 

'The time of allowance (of alimony) 
like the question of amount, is in the 
discretion of the court, and may, ac- 
cording to some authorities, be made 
to relate back to the commencement 
of the suit." Reynolds r. Reynolds, 72 
W. Va. 349, 351, 78 S. E. 360. 

On an appeal by the husband from a 
decree granting the wife a divorce a 
mensa et thoro, and decreeing a con- 
veyance to the wife of the husband's 
real estate, as permanent alimony, the 
decree^ as to separation, was affirmed, 
but, in respect to taking lands for ali- 
mony, was reversed, and the cause re- 
manded, with direction to the lower 
court to enter a "reasonable money de- 
cree" for alimony. Held: That the 
chancellor has discretion to allow ali- 
mony from the date of the decree of 
divorce. Reynolds v. Reynolds, 72 W. 
Va. 349, 78 S. E. 360. 

It lis error in decreeing a divorce a 
mensa et thoro, to decree payment of 
alimony "for and during the wife's 
life;" it should be during their joint 
lives, or until reconciliation. Henrie v. 
Henrie, 71 W. Va. 131, 76 S. E. 837. 

Remarriage. — On decreeing divorce 
a vinculo to a wife the court may, un- 



der § 11, chap. 64, Code 1913^ limit 
the decree for alimony to such time as 
the wife may remarry. Sperry v. 
Sperry, 80 W. Va. 142, 92 S. E. 574. 

4. Modification of Decree. 

Va. Code 1919, § 5111; Barnes Code, 
ch. 64, § 11. 

A decree allowing alimony to a di- 
vorced wife is not a final and irrevo- 
cable settlement of her right to sup- 
port for herself and infant children, as 
§ 5111 of the Code of 1919 expressly 
provides that the court may from time 
to time revise and alter such decree 
concerning the care, custody, and 
maintenance of the children, and make a 
new decree concerning the same. Love- 
grove V. .Lovgrove, 128 Va. 449, 104 S. 
E. 804. 

West Virginia Code.— "Our statutes 
virtually direct t?hat alimony be Kti- 
gated in the divorce suit. Code, chap. 
^>4s S§ 9, 11. It 'is contemplated by our 
law that, during a suit for divorce and 
at the time a decree of divorce of any 
character is made therein, all Questions 
of maintenance shall be settled. And 
as then settled they are final, except 
that adultery subsequently occurring is 
sufficient cause to cut off alimony. 
* * *. The statute provides for ho 
future change as to the permanent ali- 
mony decree, or as to the silence of 
the decree in this regard. Yet the 
very section that 'deals with this sub- 
ject of majintenance provides for future 
change as to the custody of children. 
'The expression of the one is the ex- 
clusion of the other.* A change in the 
other particular is impliedly prohib- 
ited." Chapman v. Parsons. 66 W. Va. 
307, 310, 66 S. E. 461. See, also, post, 
FORMER ADJUDICATION OR 
RES ADJUDICATA. 

Reservation of Power to Change Ali- 
mony. — Upon decreeing divorce the 
court should reserve the power to sub- 
sequently change the amount of ali- 
mony, and Emitting to do so the error 
may be corrected on appeal. Sperry v, 
Sperry, 80 W. Va. 142, 92 S. E. 574. 



156 



AUMONY 



In decreeing a divorce a mensa et 
thoroy and for the payment of ali- 
mony, the chancellor has -the power to 
reserve the right to make such changes 
in the amount, as the changed circum- 
stances of the parties, and the princi- 
ples of justice may require. Henrie y, 
Hennie, 71 iW. Va. 131, 76 S. E. 837.' 

A decree dismissing the wife's peti- 
tion praying for an increase of alimony, 
without stating the reason why it was 
dismissed, is not an adjudication upon 
the right reserved in & former decree to 
make changes in the amount. Henrie 
V. Henrie, 71 W. Va. 131, 76 S. E. 837. 

To obtain a modification of a de- 
cree of divorce, respecting the alimony 
or custody of the children, awarded by 
it, the petitioner must set forth in his 
pleading such facts and circumstances 
as will, if established by proof, entitle 
him to the relief he desires. Mere 
claims and conclusiions stated in gen- 
eral terms are insufficient. Boger v. 
Roger, 86 W. Va. 590, 104 S. E. 49. 

5. Lien. 

A decree for alimony constitutes a 
lien on the real estate of the party 
against whom it is pronounced. Smith 
r. Smith, 81 W. Va. 761, 95 S. E. 199. 

A decree for alimony payable in 
monthly instalments during the life- 
time of the beneficiary constitutes a 
lien in her favor upon all of the hus- 
band's real estate from the date of such 
decree, not only for the instalments 
presently due, but for those that shall 
fall due under such decree in the fu- 
ture; and where a temporary decree for 
alimony is subsequently made perma- 
nent, the lien for the whole amount 
dates from the date of the temporary 
decree, and takes (priority over subse- 
quent judgments against the husband 
or liens created by him. I'saacs v, 
Isaacs, 117 Va. 730, 86 S. E. 105. 

Permanent alimony decreed in a fixed 
annual sum, the defendant appearing in 
the case or served with process, is a 
personal decree and a lien on his land, 
though such alimony be payable in in- 



stallments in the future. Goff v. Goff, 
60 W. Va. 9, 53 S. E. 769. 

Quaere, can a court, in a divorce case, 
declare alimony a lien on specific land 
brought before the court in case the 
defendant is a nonresident, so that no 
personal decrees can be had. under § 
11, ch. 64, West Virginia Code of 
1899. Goff V. Goff, 60 W. Va. 9, 53 S. 
E. 769. 

Same — Effect of Judgment of An- 
other State on Rights of Property Es- 
tablished by Decree of This State.— A 
decree for alimony rendered by a court 
of this {State, having full jurisdiction 
over the parties and the subject matter 
of the suit, in so far as it affects the 
rights of property established by said 
decree, can not in any wise be affected 
by a decree rendered by a court of an- 
other State in a ^uit between the same 
parties. Isaacs v. Isaacs, 115 Va. 562. 
79 S. E. 1072. 

6. Enforcement. 

Imprisonment for Non-Payment of. — 

Whnle the remedy of imprisonment for 
failure to pay alimony is severe and 
harsh, and therefore should not be en- 
forced except where it appears that the 
defendant is contumacious, still where 
thds does appear there should be no 
hesitation in imposing the penalty. 
West V. West, 126 Va. 696, 101 S. E. 
876. , 

Same. — Notwithstanding the abolish- 
ment of imprisonment for debt, a court 
of equity can commit to jail for failure 
to pay alimony. West v. West, 126 Va. 
696, 101 S. E. 876. 

Same — Decree for Alimony Distin- 
guished from Judgment for Debt — A 

decree for alimony is essentially dif- 
ferent from an ordinary debt or judg- 
ment for money. It is an allowance in 
the nature of a partition of the hus- 
band's property, of which the wife is 
entitled to a reasonable share for her 
maintenance^ The imprisonmeat is 
not ordered simply to enforce the pay- 
ment of the money, but to t>unish for 



Alimony 



157 



the wilful disobedience of a proper or- 
der of a court of competent jurisdic- 
tion. West V, West, 126 Va. 696, 101 
S. E. 876. 

Though a decree for alimony consti- 
tutes a lien on the real estate of the 
party agadnst whom it is pronounced 
and may be enforced by execution, it 
is a decree not merely for the payment 
of money, but for the payment of 
money in discharge of the high marital 
duty of maintenance, wherefore it may 
be enforced by attachment for con- 
tempt also. Smith v. Smith, 81 W. 
Va. 761, 95 S. E. 199. 

Same— Temporary Alimony. — In- 
stance in which a decree ordering the 
husband's imprisonment was justified. 
West V, West, 126 Va. 696, 101 S. E. 
876. 

Necessity for Purging of Contempt. 
—To obtain his liberty on the ground 
of his {inability to satisfy a (decree for 
alimony, made in a suit for divorce, in 
which the icourt entering 'it had full 
and complete jurisdiction, a party com- 
mitted on an attachment for his contu- 
macious refusal to pay the amount so 
decreed against him, must purge him- 
self of the contempt, as far as possi- 
ble, and make his application for such 



committed. Ex parte Beavers, 80 W. 
Va. 34, 91 S. E. 1076. 

Habeas Cocpus. > — Without having 
done so, and clearly and fully proved 
his inability ito satisfy the decree, he 
is *not entitled to a discharge on a writ 
of habeas corpus. Ex parte Beavers, 
80 W. Va. 34, 91 S. E. 1076. 

Lack of a recital in the order of 
commitment for such contempt, of a 
finding of the defendant's ability to 
pay the amount decreed against him, 
does not vitiate the order, nor rebut 
the presumption in favor of the cor- 
rectness thereoffc Ex parte Beavers, 
80 W. Va. 34, 91 S. E. 1076. 

Lack of a limitation upon the period 
of imprisonment adjudged by way of 
execution, to compel satisfaction of a 
decree for the payment of alimony, 
does fliot make it a decree of perpetual 
imprisonment, nor render the punish- 
ment incident thereto cruel or unusual 
within the meaning of constitutional 
provisions inhibiting such punishment. 
Ex parte Beavers, 80 W. Va. 34, 91 S. 
E. 107-6. 

A writ of error does not lie to a 
judgment of contempt for disobedience 
of a decree requiring payment of ali- 
mony. Smith V. Smith, 81 W. Va. 



relief in the court in which he was 761, 95 S. E. 199. 



ALL.— See post, ANY; AVENUES; FOR; MALE CITIZENS; WILLS. 

"The word all is without doubt one of very comprehensive meaning, but the 
meaning to be given to it in any particular case must be determined by its con- 
text. It may have its broadest signification, or it may be limited in its mean- 
ing to all of a particular kind or class. Willis v. Kalmbach, 109 Va. 475, 485, 
64 S. E. 342. 

"All personal property of every description," includes aU kinds of personal 
property, whether tangible or intangible. West v. Newport News, 104 Va. 
21, 26, 51 S. E. 206. 

In State v. Harden. 62 W. Va. 313, 58 S. E. 715. 60 S. E. 394, it was con- 
tended by counsel that the broad terms "license of all kinds" used in a statute 
might be restrained and limited by construction so is to apply to municipal 
license of owner, not to include state licenses, but the court said that, "*all 
kinds' means all classes as well as individuals of each class." 

In the statute of West Virginia requiring all railroad companies to provide 
and keep for the accommodation of travelers suitable water-closets "at all 
stations," the words "all stations" literally include flag stations, but the words 
used by the legislature must be interpreted in the light of the nature of the 
subject matter of the statute and the conditions and circumstances, suggested 



158 Allowed 



respectively by the term **station" on the one hand, and the words "flag station" 
on the other. State v, Baltimore, etc., R. Co., 61 W. Va. 367. 368, 56 S. E. 
518. See post, RAILROADS. 

As to meaning of all in will postponing distribution of bequests to children 
until all reach their majority, see Davis Trust Co. v. Price. 77 W. Va. 678, 88 
S. E. 111. See also post, WILLS. 

All Elections.— See Willis v, Kalmbach, 109 Va. 475, 485. 64 S. E. 342. See, 
also, post, ELECTIONS. 

All Lots Remaining Unsold.— See McNamara v. Boyd, 112 Va. 145, 148, 70 S. 
E. 694. 

All Such Right, Title and Interest, etc.— See State v. Mathews, 68 W. Va. 89, 
95, 69 S. E. 644. See, also, post, TAXATION. 

All the Coal. — "The right of subjacent support is not waived by the sale 
of all the coal with the right to mine and remove it. or the sale of the surface 
reserving the coal with the right to mine and remove it. * * *. A convey- 
ance or the reservation of all the coal with the right to mine it, is, as was said, 
in the dissenting opinion in Griffin v. Coal Co., 59 W. Va. 480, 53 S. E. 24, 2 
L. R. A., N. S., 1115, one and the same thing. 'No talismanic influence is to 
be attributed to the word alL The coal under a tract of land is precisely the 
same as all the coal, and to attribute to the word all any intensive force is a 
mere verbal criticism without effect, weight or influence. It is the sticking in 
the bark which always misses the marrow ' ** Stonegap Colliery Co. v. Hamil- 
ton, 119 Va. 271, 292, 89 S. E. 305. See post, MINES AND MINERALS. 

All the Timber.— See Darnell v, Wilmoth. 69 W. Va. 704, 708. 72 S. E. 1023. 

ALLEY. — The words alley way have the same meaning as the word alley. 
An alley may be public or private. When used in a plat or statute concerning 
towns or cities, it will be taken to mean a public way, unless the word ''private" 
is prefixed or the context requires a different meaning. When used in a deed 
between private parties, it may mean a private- alley, if that clearly 
appears to be the intention. An alley is a narrow passage or way in a city, 
as distinguished from a public street. If the grant were of a public alley way 
or alley, it would certainly imply an open and unobstructed alley way or 
alley. From the use of the same word or words, by parties in relation to land 
in a city, although by the context it appears to be a private alley way, it seems 
to be a fair inference to say that they mean the same as to the character 
and condition of the alley way, so far as future obstructions are concerned, 
as they would mean were it a public alley or alley way. In other words, the 
difference between a public and private alley way is not so much in the char- 
acter or condition of the alley way as in the use and control of it. Flaherty r. 
Fleming, 58 W. Va. 669, 673, 52 S. E. 857. See post, MUNICIPAL COR- 
PORATIONS; STREETS AND HIGHWAYS. Also, see post, FOR AN 
ALLEY WAY. 

ALLOWED. — Where the condition of a policy was that it should be void 
if "there be kept, used or allowed gasoline" on the premises, it was held that 
the word allowed was to be construed as meaning ''allowed to be kept or used,'' 
and that the condition was not violated by permitting gasoline to be carried 
through the building on the premises. Westchester Fire Ins. Co. v. Ocean 
View Pleasure Pier Co., 106 Va. 633, 643, 56 S. E. 584, citing London, etc., Ins. 
Co. V, Fisher. 92 Fed. 500, in which the opinion was delivered by Judge Taft. 
See, generally, post, FIRE INSUR.ANCE. 



ALONG.— See post, BOUNDARIES. 

Where an injunction restrains the defendant from interfering with the 
complainants in the erection, construction and maintenance of a telephone 
line or lines, telegraph line or lines, along the public highway which passes 
through the farm of the defendant, the expression "along the public highway," 
in this connection, means in, on or over the public highway and not in, on or 
over defendant's land. Lowther v. Bridgeman, 57 W. Va. 306, 312, 50 S. E. 
410. Sec, generally, post, TELEGRAPHS AND TELEPHONES. 

ALTERATION.— As to alteration of grade of street, see post, STREETS 
AND HIGHWAYS. 

The alteration of a county road or highway embraces and requires: (1) A 
new location, (2) constructing thereon a roadway as good as the present one, 
(3) the discontinuance of the present road; and these three things constitute 
the alteration authorized by the statute, § 1294b of the Virginia Code of 1904. 
Carolina, etc.. Railway v. Board, 109 Va. 34, 39, 63 S. E. 412. See post, RAIL- 
ROADS; STREETS AND HIGHWAYS. 



ALTERATION OF INSTRUMENTS. 

n. Material and Immaterial Alterations, i59 

A. What Constitutes Material or Immaterial Alteration, Generally, 159. 

B. Instances of Material Alteration, 159. 

C. Instances of Immaterial Alterations, 159. 

D. Effect of Material Alteration, 160. 

E. Effect of Immaterial Alteration, 160. 

m. Consent Bule, i60. 
IV %. Jurisdiction, i6i. 
v. Evidence, i6i. 

A. Burden of Proof and Presumptions, 161. 
Aj4. Parol Evidence, 161. 

B. Questions of Law and Fact, 161. 

D. Weight and Sufficiency of Evidence, 161. 

CROSS REFERENCES. 

See the title ALTERATION OF INSTRUMENTS, vol. 1, p. 307, and ref- 
erences there given. In addition, see post, CONTRACTS; ELECTIONS; 
LOST INSTRUMENTS AND RECORDS; RECORDS; RESCISSION, 
CANCELLATION AND REFORMATION; WILLS. As to alteration of 
plot, see post, MUNICIPAL CORPORATIONS. 



II. MATERIAL AND IMMATE- 
RIAL ALTERATIONS. 

A. WHAT CONSTITUTES MATE- 
RIAL OR IMMATERIAL AL- 
TERATION, GENERALLY. 

Va. Code 1919, § 5687; Barnes Code, 
ch. 98A, § las. See post, BILLS, 
NOTES AND CHECKS. 



B. INSTANCES OF MATERIAI. 
ALTERATION. 

Sec ante, "What Constitutes Mate- 
rial or Immaterial Alteration Gen- 
erally," II, A; post, "EflFect of Material 
Alteration," II, D. 

C. INSTANCES OF IMMATERIAL 

ALTERATION. 
See post, "Effect of Immaterial Al- 
terations," 11, E. 



159 



160 



Alteration of Instruments 



D. EFFECT OF MATERIAL AL- 
TERATION. 

Wardioase (Receipt. — ^Va. Code 1S>19, 
§ 11302; Barnes Code 1918, ch. 62 F, 
§ 13. 

Negotiable Instrumenta. — Va Code 
1919, § 56»6; Barnes Code, ch. 98b, § 
124. 

The addition of the words "payable 
with interest" to a negotiable note, 
in the same handwriting as the body 
of the note, written on a blank space 
after the words "value receivi*d/' at 
the most appropriate place on the note 
on which it could be written without 
.interlining them (in the "absence of 
anything on the face of the note to 
show that it had been altered or to 
awaken suspicion) does not render the 
note incomplete or irregular on its face 
within the meaning of the Negotiable 
Instruments Act. American Bank v. 
McComb, 105 Va. 473, 54 S. E. 14. 

If a willi c n agreement not under 
seal be altered by the party claiming 
under it in a material part, he can 
never recover upon the agreement so 
altered, nor can he avail himself of the 
contract in its original and true form. 
PhiHp Carey Mfg. Co. v, Watson, 58 
W. Va. 189, 52 S. E. 515. 

Where an agreement is prepared 
between adjoining landowners for a 
private way through their lands, and 
signed by all but one of the parties, 
and, in order to obtain his signature, 
one who had signed the agreement 
procured the same to be materially 
changed las to the route of the proposed 
road through the lands of the party 
not signing, the agreement lis of no ef- 
fect as to one who had signed it, but 
did not know of, or consent to, the 
change. Hershman v, Stafford, 58 W. 
Va. 459, 52 IS. E. 533. 

Effect of Alteration of Deed.— If, 
after execution, a deed for land be al- 
tered by rthe grantee or by his privity 
so as to make it describe land not 
granted thereby, flts operation as an 
executed contract is not affected, and 
the title vested by it is not disturbed. 



The effect of such unauthorized altera- 
tion ^s to deprive the party making it 
of all future benefits of an executory" 
nature or obligation which he might 
have derived under the deed. Wal- 
dron V, Waller, 65 W. Va. 605, 64 S. 
E. 964. 

Such unauthorized alteration of a 
deed will not entitle the grantor by a 
suit in equity to set aside his deed and 
be reinvested with the title to the land 
conveyed. Waldron v. Waller, 65 W. 
Va. 605, 04 S. E. 964. 

E. EFFECT OF IMMATERIAL 
ALTERATION. 
Erasure of Memorandum from Mar- 
gin of Note. — A negotiable instrument 
constituting tan unconditional promise 
to pay a certain sum of money is not 
rendered invalid in the hands of the 
purchaser thereof in due course with- 
out notice by the erasure from the 
margin of the memorandum, "This 
note is to fulfill an agreement of la cer- 
tain date," or "This note is to fulfill a 
certain agreement," or "This note is to 
fulfill a contract dated July 7th, 1915." 
The instrument being unconditional 
such a memorandum constitutes merely 
a statement of the transaction which 
gave rise to the instrument, and being 
immaterial its erasure does not vitiate 
the paper in the hands of a holder in 
due course. It is protested by § 3, 
chapter 98A, Barnes Code. Mason v. 
Shaffer, 82 W. Va. 632, 96 S. E. 1023. 

III. CONSENT RULE. 

Deed. — No erasure or alteration in a 
conveyance, lior even the cancellation 
thereof by mutual consent of the par- 
ties, can divest an estate already vested 
by operation of the deed; for that 
would be in conflict with the statute of 
conveyances, which declares that no 
estate of inheritance or freehold, or 
for a term of more than five years in 
lands, shall be conveyed unless by deed 
or will. Code of 1904, § 2413. Brooks 
V. Clintsman, 124 Va. 736, 98 S. E. 742, 
100 S. E. 394. 

Failure to Object — If the maker of 



Alteration of Instruments 



161 



a negotiable note disclosing on its face, 
an alt-eration thereof respecting its 
amount, prejudicial to the payee and 
holder and advantageous to the former, 
makes no objection to it on the trial of' 
an action thereon, on the ground of 
such alteration, admits the signature 
thereto, after inspection, and defends 
upon a wholly different ground, a jury 
would be warranted in finding the al- 
teration was made, authorized or as- 
sented -to by him, wherefore the court, 
on a demurrer to the evidence, should 
find the law as to the validity of the 
note, to be for the plaiintiff. Harper v. 
Clear Fork Coal, etc., Co.. 80 W. Va. 
246, 92 S. E. 565. 

IV54. JURISDICTION. 
Where a deed conveying a tract of 
land to a person for life, with a re- 
mainder to her chiildren, was altered 
after its execution and before it was 
admitted to record by striking, or blot- 
ting out so much as referred to the 
children, a court of eq-uity has jurisdic- 
tion to grant the relief prayed for by 
plaintiffs (to decree such remainder to 
the children). Dickenson v. Ramsey, 
fts Va. 521, 79 S. E. 1025. 

V. EVIDENCE. 

A. BURDEN OF PROOF AND 
PRESUMPTIONS. 

Presumptions. — In the absence of 
explanation tending to show the altera- 
tion was made under circumstances 
rendering it lawful, the alteration will 
be presumed to have been made by the 
party producing the agreement, or with 
his privity and fraudulently so far as 
legal fraud attaches to a willful change 
of an agreement by a party thereto. 
Philip Carey Mfg. Co. v. Watson, 58 
W. Va. 189, 190, 53 S. E. 515. 

Burden of Proof. — Where a material 
alteration is shown to have been made 
after the execution of the agreement, 
the burden is on the party producing 
?nd relying upon the agreement 
to explain the alteration by showing 
that it was made under circumstances 
rendering it lawful. Philip Carey Mfg. 

—It 



Co. V. Watson, 58 W. Va. 189, 152 S. 
E. 515. 

\y2. PAROL EVIDENCE. 

Section 1511, Elliott on Evidence, is 
as follows: "The rule which forbids 
the admission of parol evidence to vary 
a written contract has no application 
to evidence offered to show a fraudu- 
lent or unauthorized alteration in a 
written instrument, and relevant pa- 
rol evidence is admissible to impeach 
such an instrument on that ground." 
Burnette v. Young, 107 Va. 184, 187, 57 
S. E. 641. 

Parol evidence is admissible to show 
that, after an unsealed paper had been 
executed, delivered and recorded, a 
scroll, by way of a seal, was affixed to 
the name of the maker, both on the 
original paper and on the record, with- 
out the knowledge or consent of the 
maker. Burnette v. Young, 107 Va. 
184, 57 S. E. 641. 

B. QUESTIONS OF LAW AND 
FACT. 

The materiality of the alteration is 
a question of law for the court upon 
the admissibility of the altered instru- 
ment in evidence; and the alteration 
being shown, nothing remains for the 
jury to pass upon. State v, Lotono, 62 
W. Va. 310, 58 S. E. 621; Philip Carey 
Mfg. Co. V. iWatson, 58 W. Va. 189, 
52 .S. E. 515. 

**As the alleged alteration was not of 
a material part of the instrument and 
not sufficient to vitiate it an the hands 
of the plaintiff, the question of its ma- 
teriality was one for the court, and 
the court properly (instructed the jury. 
Philip Carey Mfg. Co. v. Watson, 58 
W. Va. 189, 52 S. E. i515." Mason v, 
Shaffer, 82 W. Va. 632, 636, 96 S. E. 
1023. 

D. WEIGHT AND SUFFICIENCY 
OF EVIDENCE. 

Deed. — Clear, cogent, and convinc- 
ing proof lis required to establish alle- 
gations that a deed conveying a tract 



162 



Amendments 



of land to a person for life, with a re- 
mainder to her children, was altered 
after its execution and before it was ad- 
mitted to record by striking or blot- 
ting out so much as referred to the 
children. Dickenson v. Ramsey, 115 
Va. 521, 79 S. E. 1025. 

In Diekenson v. Ramsey, 115 Va. 
521, 79 S, E. 1025, the court held that 
the testimony in the case in judgment 



falls far short of the degree of proof 
which the law requires. 

Oil and Gas Lease. — ^The case at bar 
is one involving the application of well 
settled principles, in which the evidence 
is held to be sufficient to prove a fraud- 
ulent alteration in the material terms 
of an oil and gas lease. Southern v. 
South Penn Oil Co., 74 W. Va. 213, 81 
S. lE. 981. 



ALTERNATION. — Alternation means the occurrence or action of two things 
in turn, first one and then the other, as of day and night. Norfolk, etc., R. Co. 
V, Simmons, 127 Va. 419, 103 S. E. 609. 

AMBIGUITY.— See post, BOUNDARIES; CONTRACTS; DEEDS; IN- 
SURANCE; PAROL EVIDENCE; PLEADING; STATUTES; WILLS. 



AMENDMENTS. 

I. Oonstruction of Statutes, i64. 
n. Of Pleadings, i«4. 

A. In General, 164. 

B. Discretion of Court, 165. 

Bj/^. Amendment Introducing a New Cause of Action, 165. 

C. Amendments to Conform to Proof — Variance, 165. 

D. Terms and Conditions, 166. 

E. Of Sworn Pleadings, 166. t 
E^i. Where Action Brought on Wrong Side of Court, 166. 

EJ4. Where Action Revived in Name of New Party, 166. 

F. Of Pleadings in Justice's Court and on Appeal from Such 

Court, 166. 

1. In Virginia, 166. 

2. In West Virginia, 166. 

G. Of Equity Pleadings, 166. 

1. In General, 166. 

2. Of Bills, 167. 

J4a. Discretion of Court, 167. 

a. Nature and Grounds, 167. 

c. Where Defendant Sets up New Matter in Answer, 167. 

i. Amendments to Give Jurisdiction, 168. 

m. Insufficient Allegations in Original Bill, 168. 

o. Amendment to Conform to Proof, 168. 

q. Misjoinder and Nonjoinder of Parties, 168. 

r^. Misnomer, 169. 

s. Making New or Different Case, 169. 

V. At What Stage of Proceedings— Laches, 170. 

(1) In Virginia, 170. 

(2) In West Virginia, 171. 

X. Amended Bill Stops Running of Statute, 171. 



Amendments 163 



x^. Effect of Amendment After Demurrer tp Original Bill Is 
Sustained, 171. 
gg. Supplemental Bills, 171. 
3. Of Answer, 172. 
H. Of Common Law Pleadings, 172. 

1. Of Declarations, 172. 

a. In General, 172. 

b. In Actions of Ejectment, 173. 

c. Mandamus Nisi, 173. 

d. Where Declaration Is Demurred to, 173. 

dj4. Variance between Declaration and Summons, 173. 

f. Omission of Parties, 173. 

g. Misnomer, 173. 

gl/j. Misjoinder of Causes of Action, 174. 
h. Introducing New Cause of Action, 174. 

(1) Doctrine Stated, 174. 

(2) Doctrine Illustrated, 174. 

(a) Amendments Introducing New Cause of Action, 174. 

(b) Amendments Not Introducing New Cause of Ac- 

tion, 175. 
hf4. Variance between Declaration and Proof, 176. 
h}4. What Constitutes an Amended Declaration, 177. 
j. Effect of Amendment on Running of Statute of Limita- 
tions, 177. 
k. Amendment as Waiver of Error in Previous Rulings, 177. 
1. Effect on Original Pleadings, 177. 

V/i' Effect of a Second Amended Declaration and the With- 
drawal Thereof, 177. 
15^. Waiver of Error in Allowing Amendment, 178. 
m. Pleading to Amended Declaration, 178. 

2. Of Pleas, 178. 

35^ Of Demurrers, 178. 

4. At What Stage of Proceedings, 178. 

5. Refusal to Allow Amendment, 181. 

a. In General, 181. 

b. Remand with Directions to Amend, 181. 

m. Of Bin of Particulars, isi. 
I^l^. Of Writs in General, 181. 

IV. Of Scire Facias, 181. 

Vn. Of Attachments, 181. 

Vm. Of Summons and Process, 181. 

IZ. Of Betums, 182. 

X. Of Indictments, Informations and Presentments, isa. 

XI. Cure By Verdict— Statute of Jeofails, i83. 

B. Defective or Imperfect Averments, 183. 

C5^. Omission of Similiter, 183. 

E. Misjoinder and Nonjoinder of Issue, 183. 

I. Where Declaration Sets Forth No Cause of Action, 183. 

I^. Omission of Matter of Substance, 183. 

CROSS REFERENCES. 

Sec the title AMENDMENTS, vol. 1, p. 316, and references there given. In 



164 



Amendments 



addition, see ante, ACCOUNTS AND ACCOUNTING; post, APPEAL AND 
ERROR; BILLS, NOTES AND CHECKS; CONSTITUTIONAL LAW; 
CONTINUANCES; CORPORATIONS; DEMURRERS; EQUITY; FIRE 
INSURANCE; INSURANCE; LIS PENDENS; MECHANICS' LIENS; 
PARTITION; PLEADING; PROFERT AND OYER; SUMMONS AND 
PROCESS. As to amendment of attachments, see post, ATTACHMENT 
AND GARNISHMENT. As to constitutional amendments, see post, CON- 
STITUTIONAL LAW. As to amendment of execution issued on judgment 
for costs, see post, COSTS. As to amendment of demurrer to the evidence, 
see post. DEMURRER TO THE EVIDENCE. As to amendments of re- 
turns on executions, see post, EXECUTIONS. As to amendment of indict- 
ments, informations and presentments, see post, INDICTMENTS, IN- 
FORMATIONS AND PRESENTMENTS. As to effect of amendments to 
pleadings in relation to the statute of limitations, see post, LIMITATION OF 
ACTIONS. As to amendment where a bill is multifarious, see post, MULTI- 
FARIOUSNESS. As to amendment of orders of court, see post, ORDERS 
OF COURT. As to amendment of records, see post, RECORDS. As to 
amendment of writ of scire facias, see post, SCIRE FACIAS. As to statutory 
amendments, see post, STATUTES. 



I. CONSTRUCTION OF STAT- 
UTES. 

Liberal Construction. — Code of 100*, 
§ 3384 (Code 1919, § 6250) and act of 
March 27, 1914 (Acts 1914, ch. 331, p. 
641), are remedial and must be liberall}' 
construed to advance the remedy and 
avoid the evils which they seek to cure. 
Standard Paint Co. v, Victor & Co., 120 
Va. 595, 91 S. E. 752; Conrad v, Ellison- 
Harvey Co., 120 Va. 458, 91 S. E. 763. 
See post, '^Amendments to Conform 
to Proof— Variance," II, C. 

IL OF PLEADINGS. 

A. IN GENERAL. 

The authority of the court to permit 
amendments exists independently of 
statute. National Bank v. Lynch, 69 
W. Va. 333, 334, 71 S. E. 389; Staats v. 
Insurance Co., 57 W. Va. 571, 573, 50 
S. E. 815. 

Courts may allow pleadings to be 
amended whenever justice will be 
promoted thereby. Staats v. Insur- 
ance Co., 57 W. Va. 571, 573, 50 S. E. 
815. 

It is the settled policy of our law to 
allow amendments in pleadings and to 
disregard defects in procedure which 
do not operate to the prejudice of the 
substantial rights of the opposite part^. 



Carpenter v. Meredith, 122 Va. 446, 96 
S. £. 635. ^- 

Amendments are freely allowed, and 
are to be favored when they promote 
the ends of justice. It would be a re- 
proach to the administration of justice 
to permit a substantial right to be 
sacrificed to a mere form which did 
liot affect the rights of the parties, or 
the mode of procedure, and which 
could be readily changed without in- 
jury or injustice to any one. The ends 
of justice should never be sacrificed 
to mere form, or by too rigid an adher- 
ence to technical rules of practice. 
Watson V. Brunner, 128 Va. 600, 105 S. 
E. 97; Du Pont, etc., Co. v, Snead, 124 
Va. 177. 97 S. E. 812. 

But while great liberality is allowed 
in amending pleadings, both at law and 
in equity, when a party has had every 
opportunity afforded him to present his 
case for consideration and determina- 
tion by the court, he will not be al- 
lowed, after he has ascertained what 
the decision of the court will be, to 
come forward and, by means of amend- 
ment of his pleadings, obtain another 
hearing of matters which he might 
have brought forward when the case 
was first submitted, but declined to 
present. An "amended and supple- 



Amendments 



165 



mental petition," which alleges no new 
matter, no atter-discovercd evidence, 
no misconduct or surprise, tenders no 
new proof and gives no excuse for fail- 
ure to present it before, is properly re- 
fused. Jackson v. Valley Tie, etc., Co., 
108 Va. 714, 62 S. E. 964. 

Plaintiff Must Ask Leave to Amend. 
—The authorities hold that in order to 
amend a pleading the plaintiff must ask 
leave. Blue v. Campbell, 57 W. Va. 34, 
37, 49 S. E. 909. 

B. DISCRETION OF COURT. 

Va. Code 1919, § 6140. 

It is in the discretion of the trial 
court, at any time before verdict is ren- 
dered, to allow amendments of the 
pleadings which will operate in favor 
of justice. Whitley v. Booker Brick 
Co.. 113 Va. 434, 74 S. E. 160. 

The rule is well recognized, that in 
granting leave to amend a pleading, the 
matter rests in the sound discretion of 
the court, and, where the defendants 
have no reasonable ground to object 
to the proposed amendments, an appel- 
late court will not reverse the trial 
court for allowing pleadings to be 
amended, unless it appears that the 
discretion resting in the trial court has 
been abused. Watson v, Brunner, 128 
Va. 600, 105 S. E. 97. See post, AP- 
PEAL AND ERROR. 

The act of March 27. 1914 (Acts 
1914, p. 641; Code 1919, § 6104), pro- 
viding that the trial court "may*' at 
any time permit any proceeding 
or pleading to be amended, is not man- 
datory but permissive. The trial 
courts must always permit amendments 
in furtherance of justice, and upon re- 
fusal to do so, such action may be re- 
viewed by the Supreme Court of Ap- 
peals; but such amendments are not 
matters of right, and should not be per- 
mitted to delay, impede or embarrass 
the administration of justice. Rich- 
mond College V. Scott-Nuckols Co., 124 
Va. 333, 98 S. E. 1; Watson v. Brunner, 
128 Va. 600, 105 S. E. 97. See post, "At 
What Stage og Proceedings — Laches," 



II, G, 2, v; '*At What Stage of Pro- 
ceedings," II, H, 4. 

While courts are liberal in allowing 
amendments of pleadings, there must 
be an end of ^ litigation at some time, 
and the litigation cannot end as long 
as the pleading continues. Litigants 
cannot be permitted to unnecessarily 
protract litigation by presenting their 
cases by piece meal. After they have 
had fair and ample opportunity of pre- 
senting their cases in the pleadings, 
whether or not amendments shall be al- 
lowed must rest in the discretion of 
the court in view of the circumstances 
of the particular case, and regulated by 
the established and recognized rules 
of practice in such cases. Davis v, 
Alderson, 125 Va. 681, 100 S. E. 541. 

BJ^. AMENDMENT INTRODUC- 
ING A NEW CAUSE OF AC- 
TION. 

See post, "Making New or Different 
Case," II, G, 2, s; "Introducing New 
Cause of Action," II, H, 1, h. 

A substantive cause of action, or a 
new cause different from that declared 
on in the original action, cannot be in- 
troduced by amendment. The plaintiff 
will not be permitted to abandon the 
entire case made by his pleading, and 
make a new and different case by way 
of amendment. Watson v, Brunner, 
128 Va. 600, 105 S. E. 97. 

"But as Judge Burks says in Hurt v. 
Jones, 75 Va. 341, *it may be difficult 
under the adjudications to state what 
is to be regarded as a new case within 
the meaning of the rule.' " Watson 
V, Brunner, 128 Va. 600, 105 S. E. 97. 

C. AMENDMENTS TO CONFORM 
TO PROOF— VARIANCE. 

Va. Code 1919, § 62.50. 

Barnes Code W. Va., p. 1137, ch. 131, 
§8. 

Amendments may be made in case 
of variance. Staats v. Insurance Co., 
57 W. Va. 571, 573, 50 S- E. 815. 

Section 0250, Code 1919, Construed. — 

Where there is a variance between the 



166 



Amendments 



allegations of the pleadings and the evi- 
dence, it is in conformity with § 3384 of 
the Code (Code 1919, § 6250) to allow 
the pleadings to be amended and the 
practice is to be commended as promo- 
tive of substantial justice. Chesapeake, 
etc., R. Co. V. Swartz. 115 Va..723, 80 
S. E. 568; McKee v. Bunting, etc., Co., 
114 Va. 639. 77 S. E. 515. 

This section of the code is remedial 
and must be liberally construed to ad- 
vance the remedy and avoid the evils 
which it seeks to cure. Standard Paint 
Co. V, Victor & Co., 120 Va. 595, 91 S. 
E. 752; McKee v. Bunting, etc., Co., 
114 Va. 639, 77 S. E. 515; Norfolk, etc., 
R. Co. V. Perdue, 117 Va. ill, 83 S. E. 
1058. 

This is especially the case where the 
amendment will further the ends of 
justice and permit the controversy to 
be determined on its merits. McKee 
V, Bunting, etc., Co., 114 Va. 639, 77 S. 
E. 515, citing Langhorne v. Richmond 
City R. Co., 91 Va. 364, 22 S. E. 357. 
Norfolk, etc., R. Co. v. Perdue 117 Va. 
Ill, 83 S. E. 1058. 

The section applies as well to motions 
heard by the court as to jury trials. 
McKee v. Bunting, etc., Co., 114 Va. 
639, 77 S. E. 515. 

D. TERMS AND CONDITIONS. 

The Court May Impose These 

Terms.— Va. Code 1919, §§ 6104, 6250. 

E. OF SWORN PLEADINGS. 

'When a statute requires all pleadings 
to be verified by the party in whose 
name they are filed (§ 8, ch. 64, Code), 
an amendment of a pleading, especially 
if material and necessary to confer 
jurisdiction, must be verified, and if not 
verified will be disregarded. Jen- 
nings V. McDougle, 83 W. Va. 186, 98 S. 
E. 162. See post, PLEADINGS. 

"To hold otherwise would enable a 
party by amendment to incorporate in 
a bill already sworn to certain facts 
essential to his case to which he may 
not be willing to give the sanction of 
an oath. Thus the whole purpose of 



verification could be defeated. Jennings 
V. McDougle, 83 W. Va. i86, 191. 98 S. 

E. 162. 

EJ4. WHERE ACTION BROUGHT 
ON WRONG SIDE OF COURT. 

Va. Code 1919, § 6084. 

E^. WHERE ACTION REVIVED 
IN NAME OF NEW PARTY. 

Va. Code 1919, § 6168. 

F. OF PLEADINGS IN JUSTICE'S 
COURT AND ON APPEAL 
FROM SUCH COURT. 

1. In Yirginia. 

Va Code 1919, § 4989. 

Warrant Cannot Be Changed Pend- 
ing Appeal. — Where a prisoner con- 
victed by a police justice of the violation 
of a city ordinance against houses of ill 
fame, appeals to the corporation court, 
neither the attorney for the common- 
wealth nor the police justice can, pend- 
ing the appeal, change the warrant so 
as to charge an offense under § 3790 of 
the Code. There having been no con- 
viction of any offense under the stat- 
ute, the provisions of § 4107 of the 
Code (Code 1919, § 4989) as to amend- 
ments and changes of the warrant have 
no application, and until such convic- 
tion, the corporation court has no juris- 
diction, with or without the consent of 
the accused, to hear and determine a 
charge of misdemeanor under § 3790. 
Eddy V. Commonwealth, 119 Va. 823, 
89 S. E. 899. 

2. In West Virginia. 

Barnes Code W. Va., p. 683, ch. 50, 
§ 60, par. 7, p. 706, ch. 50. § 169. 

Time of Amendment. — Barnes Code, 
W. Va., p. 685, ch. 50, § 50, par. 10. 

G. OF EQUITY PLEADINGS. 

1. In GeneraL 

Amendments to pleadings to pro- 
mote justice are always favored in 
equity. Gay v, Gibson, 85 W. Va. 226, 
101 S. E. 365. 

As has been often held by this court. 



it 



Amendments 



167 



the question of amending pleadings in 
chancery is largely in the discretion 
of the trial cotirt." Branch v. Buckley, 
109 Va. 784, 786, 65 S. E. 652. 

"The court has sound discretion in 
permitting amendment or supplement 
to fit the developments of a suit in 
equity and such discretion as to the 
propriety of the time of filing the same. 
Hogg's Eq. Pro., §§ 172 et seq.. 312 et 
seq. The rule demands that the iden- 
tity of the cause of suit be preserved." 
Dudley v, Niswander, 65 W. Va. 461, 
466, 64 S. E. 745. 

It is impossible to lay down a rule 
with reference to the amendment of 
equitable pleadings, which shall govern 
all cases. The allowance of amend- 
ments to pleadings in equity must, at 
every stage of the proceedings, rest in 
the discretion of the court, and that 
discretion must depend largely on the 
circumstances of each case. Watson 
r. Brunner, 128 Va. 600, 105 S. E. 97. 

"This court has declared in Stand- 
ard Paint Co. t'. Vietor & Co., 120 Va. 
595, 91 S. E. 752, that this section (§ 
6104 Code 1919) should be liberally 
construed, and in Tidball v, Shenan- 
doah Nat. Bank, 100 Va. 741, 42 S. E. 
867, that 'The rule as to amendments 
is not less liberal in equity than at 
law.' " Watson v, Brunner, 128 Va. 
600, 606. 105 S. E. 97. See ante, "Dis- 
cretion of Court," II, B. 

"The Virginia cases dealing with the 
amendment of pleadings in equity are 
numerous and instructive. Many of 
them will be found referred to in the 
opinions in Belton 7^ Apperson, 26 
Gratt. (67 Va.) 207; Hurt v. Jones, 75 
Va. 341; Kinney v. Craig, 103 Va. 158, 
48 S. E. 864, ♦ ♦. It is laid down 
in these cases that no fixed rule can be 
formulated that will govern all cases, 
but that each case must depend largely 
on its own special circumstances. It is 
also stated that, in consideration of 
the subject, the ends of justice should 
never be sacrificed to mere form, or 
too rigid an adherence to technical 



rules of practice." Watson v. Brun- 
ner, 128 Va. 600, 607, 105 S. E. 97. 

2. Of BiUs. 

%2L. Discretion of Court. 

While courts are liberal in allowing 
amendments of bilUs, and have discre- 
tion in the matter, still this discretion 
s in no sense arbitrary or capricious, 
but is, at all times, hedged about and 
governed by rules which have long 
oeen established and recognized as 
binding upon the courts. Bo^e v. 
Scott, 113 Va. 499, 75 S. E. 123; Alsop. 
etc., Co- V. Catlett, 97 Va- 364, 34 S. E. 
18; Vashon v, Barrett, 99 Va. 344, 38 
5. E. 200; Jackson v. Valley Tie, etc., 
Co.. 108 Va. 714, 722, 62 S. E. 964. 

a. Nature and Grounds. 

"It is the practice of courts of equity 
to allow amendments to bills when the 
purposes of justice require it." Blue 
y. Campbell, 57 W. Va. 34, 36, 49 S. E. 
309. 

"An amendment of a bill will always 
be allowed whet\ substantial justice will 
be thereby advanced." Floyd v, Duffy, 
68 W. Va. 339, 353, 69 S. E. 993. 

"It is the practice of this court, as 
well as of the circuit courts, and that 
practice is founded upon the principles 
of equity, that where it is obvious that 
the plainitiif may be able to so amend 
the allegations of his bill as to entitle 
him to relief upon the sustaining of the 
demurrer, to grant leave to so amend." 
Blue v. Campbell. 57 W. Va. 34, 36, 49 
S. E. 909. 

"It is not error to omit giving leave 
to amend upon dismissing a bill upon 
demurrer, where the record does not 
disclose that any amendment improv- 
ing the bill can be made." Blue v, 
Campbell, 57 W. Va. 34, 36. 49 S. E. 
909. 

c. Where Defendant Sets Up New 
Matter in Answer. 

When new matter is introduced in an 
answer, not as a basis for affirmative 
relief, but defensive only and calling 



168 



Amendments 



for a reply, such new matter should be 
met by an amended bill. Gay v. Gib- 
son, 85 W- Va. 226, 101 S. E. 365. 

If, upon a general bill for an account, 
the defendant relies upon and proves 
a prior settlement in pais of the mat- 
ters in dispute, the complainant should , 
be allowed to amend his bill, if desired, ' 
and to surcharge and falsify the stated 
or settled account by pointing out or , 
indicating specifically any items of | 
error, mistake or omission existing | 
therein. Branner i\ Branner, 108 Va. 
660, 62 S. £. 952. 

i. Axnendments to Give Jurisdiction. 

See ante, "Where Action Brought on 
Wrong Side oIf Court," II, E%. 

m. Insufficient Allegations in Origi- 
nal Bill 

If the identity of the originally in- 
tended cause of suit is preserved, the 
particular allegations of a bill in equity 
may be changed by amendment in or- 
der to cure imperfections and mistakes 
in the manner of stating plaintiff's case. 
Hall V, McGregor, 65 W. Va. 74, 64 S. 
E. 736. 

If a plaintiff misdescribes his con- 
tract in his original bill, or omits to 
mention a subsequent modification, or 
a re-execution of the contract sued on, 
the error or omission may be corrected 
by amendment before an answer is filed 
or evidence taken. Roller v, Murray, 
107 Va. 527, 59 S. E. 421. See post, 
"Amendment to Conform to Proof," 
II, G, 2, o. 

o. Amendment to Conform to Proof. 

If a good case, not sufficiently 
pleaded, be shown by the proof, the 
court should allow an amendment be- 
fore dismissing plaintiff's bill. Mar- 
shall V. Porter, 73 W. Va. 258, 80 S. 
E. 350; Hertzog v, Riley, 71 W. Va. 651, 
77 S. E. 138; Ryan v. Nuce, 67 W. Va. 
485, 490, 68 S. E. 110. See, also, Floyd 
V, Duffy, 68 W. Va. 339, 353, 69 S. E. 
993; Whetsell v. Elkins, 68 W. Va. 709, 
70 S. E. 754. 

But where there is a material vari- 



ance between the allegations of the bill 
and the evidence, and the evidence fails 
to clearly show that the plaintiff is en- 
titled to relief, the bill will be dismissed, 
and plaintiff will not be given leave to 
amend. Caton v. Raber, 56 W. Va. 
244, 49 S. E. 147. 

Misdescription of Contract Sued on. 

— Even where the evidence discloses 
a misdescription of the contract sued 
on, the complainant may be permitted 
to amend his bill to conform to the 
proof. Roller r, Murray, 107 Va. 527, 
59 S. E. 421. 

Variance Relating to False State- 
ment in writing. — -Where one partner 
has been induced to accept from an- 
other a given sum for his interest in 
the firm, by reason of a false statement 
in writing made by that other as to the 
state of- accounts of the firm, and the 
former sues to set aside the sale, and 
charges in his bill that the false state- 
ment was on a separate paper, but it 
develops in the proof that it was in one 
of the books of the firm, he may amend 
his bill so as to conform to the 
facts, if indeed the variance is mate- 
rial. Lasky v. Burrill, 105 Va. 480, 54 
S. E. 23. 

Amended Bill Making Improi>er Par- 
ties Defendants Thereto. — When filed 
to correct a mistake of fact charged in 
the original bill, an amended bill should 
not be dismissed on demurrer, though 
it make improper parties defendants 
thereto. American Bank, etc., Co. v. 
Douglass, 75 W. Va. 207, 83 S. E. 920. 

q. Misjoinder and Nonjoinder of Par- 
ties. 
Whenever during the progress of an 
equity suit it appears in any way that 
persons not parties to the cause are 
materially interested in the subject 
involved, or have rights that will be 
affected by the decree sought, they 
must be made parties by proper amend- 
ment and process. Bragg v. United 
Thacker Coal Co., 70 W. Va. 655, 74 S- 
E. 946; Rexroad v. Raines, 63 W. Va. 
511, 60 S. E. 495. 



Amendments 



169 



When a person not a party to a suit 
in equity has an interest in its subject 
matter, though it do not appear in the 
record, but is shown by a deed or 
otherwise, the court may require him 
to be made party by amended bill. 
There is no error in so doing. Lovett 
V, Eastern Oil Co., 68 W. Va. 667, 70 
S. E. 707. 

A creditor's bill is amendable for the 
purpose of making the debtor's wife a 
party and attacking conveyances made 
by him to her, either voluntarily or 
fraudulently for the purpose of hinder- 
ing, delaying and defrauding his credit 
tors; provided always, such amend- 
ment be made with reasonable dili- 
gence. Johnson Milling Co. v. Read, 
76 W. Va. 557, 85 S. E. 726. 

Where a person files his petition 
asking to be admitted as a party de- 
fendant in a pending suit in equity, in 
which no allegation is made naming or 
referring to him in any way, and no 
relief is prayed against him, and he is 
admitted as a party defendant, he does 
not in fact become a party to the cause, 
until he has been made a party by some 
allegation in the bill as amended. Free- 
man V. Egnor, 72 W. Va. 830, 79 S. E. 
824. See post, PARTIES. 

rj^. Misnomer. 

If, in a suit to sell the real estate of 
a decedent for the satisfaction of in- 
debtedness against it, the three infant 
heirs were all made parties to the bill, 
two by their proper names and the 
third by a wrong name, and a guardian 
ad litem duly appointed filed answers 
for them, the mistake as to the name 
is a mere misnomer, correctible by 
amendment, and the party so errone- 
ously named is deemed to have come 
within the jurisdiction of the court. 
Tomblin v. Peck, 72 W. Va. 336, 80 S. 
E. 450. 

8. Making New or Different Case. 

*'While great liberality is permitted 
in amendments, so long as the identity 
of the cause of action is preserved, we 



do not understand that any authority 
goes so far as to hold that the whole 
object of the bill may be changed 
thereby, and a new caue of action, 
wholly disconnected with the original, 
substituted for it. 1 Hogg's Eq. Proc, 
§§ 326, 327; 1 Barton Ch. Pr. 346-7; 4 
Minor's Inst. 1376." Newton v, Kem- 
per, *66 W. Va. 130, 133, 66 S. E. 102. 
See, also. Hall v. McGregor, 65 W. Va. 
74, 64 S. E. 736; Dudley v, Niswander, 
65 W. Va. 461, 64 S. E. 745; Floyd v. 
Duffy, 68 W. Va. 339, 354, 69 S. E. 993; 
Ellis V, Whiteacre, 106 Va. 1, 54 S. E. 
993. 

^*The plaintiff will not be permitted 
to abandon the entire case made by 
his bill, and make a new and different 
case by way of amendment." Watson 
V. Brunner, 128 Va. 600, 610, 105 S. E. 
97. 

"But this rule has been much trenched 
upon in Virginia and other states. 
If a plaintiff is not permitted to make 
a new case, he may by his amendments 
so alter the frame and structure of his 
bill as to obtain an entirely different 
relief from that asked originally. Bel- 
ton V, Apperson, 26 Gratt (67 Va.) 207- 
8." Watson v. Brunner, 128 Va. 600, 
610, 105 S. E. 97. 

While an amended bill can not be 
allowed containing allegations inconsis- 
tent with the nature and purpose of the 
original bill or changing the cause of 
suit, yet, by its allegations it may be 
changed or modified and others added, 
provided the identity of the cause of 
suit be preserved. Cox v. National 
Coal, etc., Co., 61 W. Va. 291, 56 S. E. 
494. 

Courts of equity in Virginia are lib- 
eral in allowing amendments of bills, 
and where the purpose of the amend- 
ment is not to introduce a substantive 
cause of action different from that 
stated in the original bill, but merely 
to set forth with greater particularity 
of averment matters arising out of the 
same transaction, and germane to the 
objects for which the original bill was 






170 



Amendments 



filed, the amendment should be allowed. 
Kelly V. Gwatkin, 108 Va. 6, 60 S. E. 
749. 

"The general rule on the subject 
is well stated in 16 Cyc. 338; **An 
amended bill must not be repug- 
nant to the original, nor may it present 
an entirely new and essentially dif- 
ferent case, entirely changing the' pur- 
pose of the suit. This principle is 
clear; but difficulties arise in determin- 
ing what constitutes an essentially dif- 
ferent case. A different case is not 
made by averments setting out the case 
more specifically or fully, by adding 
new facts or grounds for relief consis- 
tent with those originally presented, 
although the relief demanded is thereby 
broadened or even changed, the main 
general object of the bill remaining the 
same. An amendment will not be per- 
mitted which changes the case as to 
all defendants and presents a new case 
against new defendants, nor may a 
plaintiff by amendment entirely change 
the grounds on which he seeks relief. 
Therefore, while a plaintiff may amend 
by alleging the same title as claimed in 
the original bill, but obtained in a some- 
what different way, he may not in gen- 
eral assert a different title, and es- 
pecially where the change entails a 
change in the capacity in which plain- 
tiff sues. Where the grounds of the 
amended bill are repugnant to those of 
the original a new case is presented 
and the amendment will not be per- 
mitted.' " Ellis V, Whitecre, 106 Va. 1, 
4, 54 S. E. 993. 

New and Different Case Made. — A 
bill filed for the purpose of enforcing 
the lien of a judgment against real es- 
tate can not, upon ascertaining that the 
judgment debtor owns no such interest, 
be converted by amendment into a bill 
to enforce an entirely different lien 
upon a different subject-matter- Hud- 
dleston v. Miller, 81 W. Va. 357, 94 S. 
E. 538. 

A trustee in a deed of trust to secure 
creditors filed a bill to enforce the 



trust, and the property was sold under 
a decree in that suit. Afterwards he 
filed on amended bill to restrain the 
sale by another trustee of other prop- 
erty belonging to the same debtor con- 
veyed by a separate deed. The prop- 
erty having been sold before the writ 
of injunction was served upon the de- 
fendants in the amended bill, certain 
judgment creditors of the debtor pre- 
sented a petition in the suit upon the 
amended bill praying an annulment of 
the sale, and the trial court set the 
sale aside. Held, the trustee in the 
first deed, having administered his 
trust, became functus officio, and the 
amended bill by which he sought to liti- 
gate matters wholly separate and dis- 
tinct from the purpose of the original 
6uit, and to affect property rights with 
which he had no concern, should have 
been dismissed. Ellis ?/. Whitacre^ 
106 Va. 1, 54 S. E. 993. 

New and Different Case Not Made. 
— Where a bill is filed to subject the 
land of two defendants to the payment 
of judgments for which they are jointly 
liable, and it is subsequently discovered 
from the proof that one of them, after 
complainant's debt was contracted, had 

' conveyed his land to the other for the 
purpose of defrauding his creditors, 
the complainant may so amend his bill 
as to put in issue the bona fides of the 

' transaction, and enable the court to do 
complete justice in the cause. This 

j is not a new case repugnant to that 

; stated in the original bill. Hobson v. 

i Hobson. 105 Va. 394, 53 S. E. 964. 

V. At What Stage of Proceedings- 
Laches. 

(1) In Virginia. 

Va. Code 1919, §§ 6095, 6104. 

Where an amended bill sets up facts 
practically identical with those con- 
tained in the original bill, and sets 
forth no new matter that was not 
known at the time of the argument of 
the demurrer to the original bill, the 
trial court may properly refuse to al- 



Amendments 



171 



low it to be filed. Starke v. Storm, 
115 Va. 651, 79 S. E. 1057; Bowe v, 
Scott, 113 Va. 499, 75 S. E. 123. 

Where a bill has been twice amended, 
the evidence taken, and the case fully 
heard and decided on its merits, further 
amendments, offered without explana- 
tion or excuse, are properly rejected. 
Roller V. Murray, 107 Va. 527, 528, 59 
S. E. 421. 

(8) In West Virginia. 

Barnes W. Va. Code, p. 1111, ch. 125, 
§ 12. 

The same degree of diligence is re- 
quired in amending a bill so as to in- 
troduce a new subject matter, as is re- 
quired in bringing an original suit. 
Johnson Milling Co. v. Read, 76 W. 
Va. 557, 85 S. E. 726. 

Sec. 12, Ch. 125, Code 1913, does not 
give a plaintiff an absolute right and 
unlimited time, ofter appearance by de- 
fendant, to amend his bill. The right 
to amend depends on whether substan- 
tial justice will be promoted thereby, a 
question which must be determined by 
the court. The statute does not pre- 
clude the defense of laches as a bar to 
the right. Johnson Milling Co. v. 
Read, 76 W. Va. 557, 85 S. E. 726. 

Delay in making an amendment for 
eight years, without excuse therefor, 
constitutes laches, and justifies the 
court in rejecting it on demurrer. A 
court of equity responds only to con- 
science, good faith and reasonable dili- 
gence. Johnson Milling Co. v. Read, 
76 W. Va. 557, 85 S. E. 726. 

"The strict rule, imposing duty to 
set up all known facts in an answer, is 
not applied to bills, except in those 
instances in which an offer to ' amend 
comes after submission or decision. 
There the rule is somewhat strict, but 
this amendment was made before sub- 
mission." Floyd V, Duffy, 68 W. Va. 
339, 354, 69 S. E. 993. 

X. Amended Bill Stops Ruxtning of 
Statute. 
Sec post, LIMITATION OF AC- 
TIONS. 



x^. Effect of Amendment After De* 
murrer to Original Bill Is Sus- 
tained. 

"Where a party, after a decree sus- 
taining a demurrer to his bill, by leave 
of the court files an amended bill, he 
is considered to have acquiesced in the 
action of the court upon the demur- 
rer and will not be permitted to assign 
such action as error in the appellate 
court. This is the rule in this state, 
and generally, it seems." Davis v, 
Marshall, 114 Va. 193, 198, 76 S. E. 316, 
citing Fudge v. Payne, 86 Va. 303, 308, 
10 S. E. 7. 



gg. Supplemental Bills. 

"One of the chief ofiBces of a sup- 
plemental bill is to bring into the case 
new events referring to, and support- 
ing, or affecting rights and interests al- 
ready mentioned, which have arisen 
subsequently to the filing of the origi- 
nal bill. Story's Eq. PL, § 336; 1 Bar. 
Chy. Pr. 165, 351." Bibb v, American 
Coal, etc., Co., 109 Va. 261, 266, 64 S. 
E. 32. 

Discretion in Court. — Va. Code 1919, 
6104. 

The original bill in the instant case 
alleged liability of defendant, a land- 
owner, to discharge a debt due by a 
contractor to complainant for materials 
furnished by complainant for the con- 
struction of defendant's house. Com- 
plainant first sought to recover this 
amount in full from defendant land- 
owner, by establishing either a per- 
sonal liability claim against the latter, 
or by enforcing a mechanic's lien 
against the property. In conformity 
with the report of a commissioner, the 
trial court held that complainant had 
no mechanic's lien upon the property, 
and his demand was not a personal lia- 
bility against defendant. Thereupon, 
complainant tendered a petition to the 
court, which he asked to be treated as 
an amended and supplemental bill in 
the cause, setting up an order from the 
contractor to the landowner to pay 
complainant $750 for materials fur- 



I 



172 



Amendments 



nished on defendant's house. This or- 
der was not referred to in the original 
bill. Held: That the court's action 
in overruling the objection of defendant 
to the filing of the petition and treating 
the same as an amended and supple- 
mental bill, was not error. Watson v. 
Brunner, 128 Va. 600, 105 S. E. 97. 

Right to File Supplemental BiU in 
Vacation.— Va. Code 1919, § 6095. 
Barnes Code W. Va., p. 1111, ch. 125, 

§ 12. 

Supplemental Bill Not Changing 
Character of Suit. — The introduction 
of new parties plaintiff and defendant, 
by means of an amended and supple- 
mental bill and bill of revivor filed in 
a suit for enforcement of judgment 
liens, after the death of the judgement 
debtor, does not change the character 
of the suit, nor make such amended 
bill a new or original one. First Nat. 
Bank v. De Berriz, 87 W. Va. 477, 105 
S. E. 900. 

3. Of Answers. 

"As to when a defendant in an 
equity suit will be permitted to file an 
amended answer is largely discretionary 
with the trial court." State v. Central 
Pocahontas Coal Co., 83 W. Va. 230, 98 
S. E. 214, 219. 

It is not error to allow a defendant 
to file an amended and supplemental 
answer, where the matter set up therein 
is of such character that it is necessary 
that the same should be before the court 
for a proper determination of the mat- 
ters involved in the suit, and is not 
contradictory of the matter alleged in 
the original answer. State 7'. Central 
Pocahontas Coal Co., 83 W. Va. 230, 
98 S. E. 214. 

But a supplemental answer setting up 
matters which have arisen since the is- 
sues were made and the cause submitted 
for decision, not responsive to the bill, 
is properly rejected. Taylor v. Tay- 
lor, 76 W. Va. 469, 85 S. E. 652. See 
also Loar 7'. Wilfong, 63 W. Va. 306, 
61 S. E. 333. 

The affidavit of the attorney who 



prepared both answers for the defendant 
"that new matter appearing in the sup- 
plemental answer was not known to 
him (the attorney) at the time of the 
preparing of the original answer, that 
a full knowledge of the facts in the 
case were only revealed or made 
known to him after the filing of the 
original answer'* is not sufficient to 
warrant the filing of such supplemental 
answer. Loar v, Wilfong, 63 W. Va. 
306, 61 S. E. 333. 

"Before a court should allow an 
amended answer to be filed, it ought 
to be satisfied that the reasons for it 
are cogent and satisfactory; that the 
mistakes to be corrected or facts to be 
I added are made highly probable, if not 
certain; that they are material; that the 
party has not been guilty of negli- 
gence; and that the mistakes have been 
ascertained, and the new facts have 
come to the knowledge of the party, 
since the original answer was filed." 
Miller v, Mitchell, 58 W. Va. 431, 432, 
58 S. E. 478. 

An amended answer, though contain- 
ing cross bill matter, must be filed with 
reasonable promptness, and where long 
delayed without excuse is properly re- 
jected. McSwegin v. Howard, 70 W. 
Va. 783, 74 S. E. M8. 

An amended answer offered five 
years after the filing of the original 
answer is properly rejected, no excuse 
or reason being given for delay. Mc- 
Swegin V. Howard, 70 W. Va. 783, 74 
S. E. 948. 

Allowance of Amendment on Terms. 
— Va. Code 1919, § 6123. 

H. OP COMMON LAW PLEAD- 
INGS. 

1. Of Declarations. 

a. In General. 

Right to Amend. — A declaration may 
be amended, in form, or in substance, 
so long as the identity of the cause of 
action is preserved. National Bank 
7'. Lynch, 69 W. Va. 333, 71 S. E. 389; 



Amendments 



173 



Mankin v. Jones, 68 W. Va- 422, 69 S. 
E. 981. 

A trial court not only has the au- 
thority, but it is its duty, to permit an 
amendment to be made to a declaration 
at any time before trial, if substantial 
justice will be promoted thereby, and 
such amendment does not introduce a 
new cause of action^ Phenix Fire 
Ins. Co. V. Virginia-Western Power 
Co., 81 W. Va. 298, 94 S. E. 372. See 
post, "Introducing New Cause of Ac- 
tion," II, H, 1, h; "At What Stage of 
Proceedings," II, H, 4. 

"This court has always been liberal 
in allowing amendments to be made 
to declarations, so long as there is an 
adherence to the original cause of ac- 
tion." Hartley z\ Western Maryland 
R. Co., 81 W. Va. 795, 95 S. E. 443, 444. 

So long as the form of action is not 
changed, and the court can see that the 
identity of the originally intended cause 
of action is preserved, the particular 
allegations of the declaration may be 
changed by an amendment in order to 
cure imperfections and mistakes in the 
manner of stating plaintiffs case. Han- 
son V. Blake, 63 W- Va. 560, 60 S. E. 
589. 

A defendant is not prejudiced by an 
amendment of the plaintiff's declara- 
tion which does not make a new and 
different case, where trial is postponed 
for two months. Southern R. Co. v. 
McMenamin, 113 Va. 121. 73 S. E. 980. 

Sufficiency of Amended Declaration. 
—The sufficiency of on amended dec- 
laration, which does not refer to nor 
make the original declaration a part of 
it, must be determined by its own aver- 
ments. Norfolk, etc., R. Co. v, Suther- 
land, 105 Va. 545, 54 S. E. 465. 

b. In Actions of Ejectment. 
See post, EJECTMENT. 

c. Mandamus NisL 

A clerical error in the date of the 
issuance of a mandamus nisi may be 
cured by an amendment. State v. Ice, 
75 W. Va. 476, 84 S. E. 181. 



d. Where Declaration Is Demurred to. 

Barnes Code, W. Va., p. 1111, ch. 
125, § 12. 

Where a demurrer to a declaration, 
technically defective for failure to aver 
plaintiff's appointment and qualification 
as administrator in an action brought 
by him as such, is erroneously over- 
ruled, and plaintiff immediately and in 
the presence of counsel for defendant 
moves for leave to amend, and leave is 
granted without objection, and the dec- 
laration is amended by inserting the 
proper averment, such voluntary 
amendment after demurrer overruled 
is not equivalent to a demurrer sus- 
tained, and under such circumstances 
the informal notice is sufficient. Suttle 
V, Hope Natural Gas Co., 82 W. Va. 
729, 97 S. E. 429. 

d^. Variances between Declamtion 
and Summons. 

Va. Code 1919, § 6103. 

f. Omission of Parties. 

—Barnes Code W. Va., p. 1113, ch. 125, 
§ 58. 

Amendment after Plea in Abatement. 
—Barnes Code W. Va,, p. 1113, ch. 125, 
§ 19. 

Insertion of Names of Additional 
Members of Defendant Firm. — It is not 
error for a trial court to permit a plain- 
tiff to amend his declaration by the in- 
sertion of the names of additional mem- 
bers of a defendant firm discovered 
since the declaration was filed. Mc- 
Intyre v. Smyth, 108 Va. 736, 62 S. E. 
930. 

g. Misnomer. 

Va. Code 1919, § 6101; Barnes Code, 
W. Va., p.. 1112, ch. 125, § 14. 

Where a corporation defendant is 
misdescribed in the writ and declara- 
tion simply by the omission of the word 
"incorporated," and there is no other 
corporation of the name stated, the 
plaintiff should be permitted to insert 
the omitted word in the proper place 
in his declaration, and a plea setting 



174 



Amendments 



up the misdescription should be re- 
jected. Arminius Chemical Co. v. 
White, 112 Va- 250, 71 S. E. 637. Sec 
post, CORPORATIONS. 

A declaration and summons describ- 
ing a defendant corporation by the name 
of "Western Maryland Railroad Com- 
pany," whereas its true name is *'the 
Western Maryland Railway Company," 
may be amended on motion by inserting 
therein the correct name, and such 
amendment does not introduce a new 
defendant or a new cause of action. 
Corrick v. Western Maryland R. Co., 79 
W. Va. 592, 91 S. E. 458. See post, 
"Introducing New Cause of Action," 
II, H, 1, h. 

g^. Misjoinder of Causes of Action. 

Where there is a misjoinder of causes 
of action in a declaration the plaintiff 
may amend so as to eliminate one or 
the other of the causes of action therein 
set forth. Shafer v. Security Trust Co., 
82 W. Va. 618, 97 S. E. 290. 

h. Introducing New Cause of Action. 

(1) Doctrine Stated. 

At common law the courts had no 
power to allow an amendment to an 
existing pleading, introductive of a new 
and distinct cause of action. Norfolk, 
etc., R. Co. V, Greenwich Corp., 122 
Va. 631, 95 S. E. 389. 

Though courts are extremely liberal 
in allowing amendments to pleadings, 
the amendment must not introduce a 
substantive cause of action different 
from that declared on in the original 
declaration. Irvine v, Barrett, 119 
Va. 587, 591, 89 S. E. 904. 

A declaration can not be so amended 
as to introduce a new cause of action, 
after the appearance of the defendant, 
if he objects to the filing thereof in 
proper time and manner. Findley v. 
Coal, etc., R. Co., 76 W. Va. 747, 87 
S. E. 198. 

Allegations in a declaration may be 
changed and others added, provided 
the identity of the cause of action be 
preserved; but amendments are not al- 



lowable which are inconsistent with 
the nature of the pleadings, or change 
the cause of action. Brown v. Cook, 
77 W. Va. 356, 87 S. E. 454. 

"The introduction of additional 
phases or circumstances of the same 
wrong complained of in the original 
declaration, if the identity of the action 
is preserved, is>npt a departure. Han- 
son V. Blake, 63 W. Va. 560, 60 S. E. 
589; Snyder v. Harper, 24 W. Va. 206; 
Clarke v, Ohio River R. Co., 39 W. Va. 
732, 20 S. E. 696; Mulvay v, Hanes, 76 
W. Va. 721, 86 S. E. 758;" Bartley v. 
Western Maryland R. Co., 81 W. Va. 
795, 95 S. E. 443, 444. 

If an amended declaration asserts 
rights or claims arising out of the 
same transaction act, agreement, or ob- 
ligation as that upon which the original 
declaration is founded, it will not be 
regarded as for a new cause of action, 
however great may be the difference 
in the form of liabilfty asserted in the 
two declarations. Wise Terminal Co. 
V. McCormick, 107 Va. 376, 58 S. E. 
584; Bowman v. First Nat. Bank, 115 
Va. 463; 80 S. E. 95; Lorillard Co. v. 
Clay, 127 Va. 734, 104 S. E. 384. 

The two declarations are regarded 
as alleging variations in the form of 
liability to meet the varying phases of 
the evidence as it may appear. Bow- 
man V. First Nat. Bank, 115 Va. 463, 
80 S. E. 95. 

The amendment of a declaration 
which does not make a different case 
from that stated in the original dec- 
laration, but merely amplifies the origi- 
nal upon points as to which the further 
details therein were to the advantage, 
and not to the prejudice of the defen- 
dant, is proper Houston v. Lynch- 
burg Tract., etc., Co.. 119 Va. 136. 89 
S. E. 114. 

(2) Doctrine Illustrated. 

(a) Amendments Introducing New 
Cause of Action. 

Additional Claim.- If objection should 
be made to amending the declaration 



Amendments 



175 



in order to include an item constituting 
an additional claim, it could not be 
amended, because it would be a de- 
parture from the original cause of 
action and would introduce into the 
case a new substantive cause of action. 
Mankin v. Jones, 68 W. Va. 422, 430, 
69 S. £. 981. 

Sabsdtutkm of New Plaintiff.— An 
entirely new plaintiff can not be sub- 
stituted after it has become manifest 
that the original plaintiff could not 
maintain the action, the proper practice 
in such case would have been for the 
plaintiff to ask to be allowed to suffer 
a nonsuit before the jury retired, under 
I 3387 of the Code of 1904 (Code 1919, 
§ 6256), and to have renewed the suit 
in the name of the proper plaintiff. 
Norfolk, etc., R. Co. v. Greenwich 
Corp., 122 Va. 631, 95 S. £. 389. See 
post, DISMISSAL, DISCONTINU- 
ANCE AND NONSUIT. 

Sections 3259, 3^0, of the Code of 
1904 (Code 1919, § 6103, 6105), and 
Acts 1914, page 641 plainly do not con- 
template the substitution of entirely 
new plaintiffs, but are rather intended 
to apply to amendments involving am- 
plified and supplemental statements of 
the original action, and in furtherance 
of its object. They were never in- 
tended to permit the substitution of a 
new cause of action. The circum- 
stance that in the case at bar the sub- 
stituted plaintiffs owned the stock of the 
original plaintiff, a corporation did not 
affect the question. The corporation was 
a separate entity from its stockholders, 
with power to sue and be sued; and, 
certainly in a legal forum, they stood 
in the same relation to each other as 
any other litigants. Norfolk, etc. R. 
Co. V. Oreenwich Corp, 122 Va. 631, 
95 S. £. 389. 

Amendment in Action under State 
Statute Claiming Right under Federal 
Bmployen' Ltability Act — ^An amend- 
ment to a declaration by a personal 
representative, under the state statute 
giving a right of action for damages 



for the death of an employee occasioned 
by the wrongful or negligent act of the 
employer, setting forth a right of action 
under the Federal Employers' Liability 
Act (April 22, 1908, c. 149, 35 Stat. 65 
[U. S. Comp. St. 1913', §§ 8657-8665]), 
states a new cause of action. Findley 
V, Coal, etc., R. Co., 76 W. Va. 747, 87 
S. E. 198. 

(b) Amendments Not Introducing 
New Cause of Action. 

Striking Out Erroneous Allegation 
as to Sute in Which Defendant Was 
Incorporated.! — Duty v, Chesapeake 
etc., R. Co.. 70 W. Va. 14, 73 S. E. 
331. 

Addition of Precise Dates of Differ- 
ent Sales. — Standard Paint Co. v. Vic- 
tor & Co., 120 Va. 595. 91 S. E. 752. 

Showing by Whom Promise Was 
BAade. — The amendment of a declaration 
so as to show that the promise origi- 
nally declared on as made jointly by 
two, was in fact made by four persons, 
two of whom died before the action 
was brought, is not a departure from the 
original cause of action. Dempsey v, 
Poore, 75 W. Va. 107, 83 S. E. 300. 

Charging Negligience in Varjdng 
Fonn. — In the case at bar, the cause 
and form of action are the same in 
both declarations, and the amended 
declaration merely charges the negli- 
gence complained of in varying form to 
meet the different phases of the evi- 
dence. This is permissible. Wise 
Terminal Co. r. McCormick, 107 Va. 
376, 58 S. E. 584. 

An amended declaration, alleging the 
act of negligence complained of to 
consist of suddenly and violently start- 
ing the train after it had stopped, and 
before plaintiff had time to alight, 
thereby throwing him to the ground 
and injuring him, instead of, as alleged 
in the original declaration, failure to 
stop the train at the station, and 
thereby compelling plaintiff to alight 
while the train was in motion, does 
not state a new cause of action. 



176 



Amendments 



Hartley v. Western Maryland R. Co., 
81 W. Va. 795, 95 S. E. 443. 

Charging Additional Ground of Neg- 
ligence. — In an action by a servant for 
the loss of an eye, caused by the break- 
ing of the bit of a drill, plaintiffs dec- 
laration was amended charging an 
additional ground of negligence on the 
part of defendant, towit, that the drill 
was out of repair and was too heavy 
to use with a one-fourth inch bit, which 
resulted in the injury complained of. 
Objection was made that the amendment 
stated a new cause of action which was 
barred by the statute of limitations. 
Held: That the amendment did not 
state a new cause of action. Lorillard 
Co. V. Clay, 127 Va. 734, 104 S. E. 384. 

Assumpsit — ^AddSng Special Count 
Applicable to Item Provable under 
Common Count. — Amending a dec- 
laration in assumpsit, embracing the 
common counts only, by adding a spe- 
cial count applicable to a particular item 
in the bill of particulars, which is also 
provable under some of the common 
counts, is not a departure from the 
original cause of action if the amount 
of damages claimed in both the original 
and the amended declarations is the 
same. Mankin v. Jones, 68 W. Va. 
422, 69 S. E. 981. 

Original Declaration Declaring Lia- 
bility as Endorser; Amended Declara- 
tion as Ghiarantor. — Bowman v. First 
Nat. Bank, 115 /a. 463, 80 S. E. 95. 

Amendment, in Action on Renewal 
Note, Setting Up Original Note. — In an 
action upon a renewal note, unless 
accepted in absolute payment of the 
original by express agreement, the 
plaintiff may of right, upon the filing 
of a plea of non est factum by the 
defendant, accept such plea and so 
amend the pleadings as to set up the 
original note. Ritchie County Bank 
V. Bee, 62 W. Va. 457, 59 S. E. 181. 

Amendment of a declaration in tres- 
pass by adding thereto additional 
counts, which aver with greater 
particularity and precision than was 



done in the original declaration, the 
duty of defendant and the negligence 
causing the injury complained of, and 
increasing the damages, is no departure 
from t he original cause action. 
Merrill v. Marietta Torpedo Co., 79 
W. Va. 669, 92 S. E. 112. 

h^. Variance between Declaration 
and Proof. 

"Plaintiff is entitled to amend his 
declaration to make it conform to his 
proof, * * * provided, however, 
there is no objection to such amend- 
ment as constituting a departure from 
the original cause of action." Mankin 
i\ Jones, 68 W. Va. 422, 430. 69 S. E. 
981. See ante, "Introducing New 
Cause of Action," II, H, 1, h. 

A declaration may be amended at the 
trial of an action, to make the allega- 
tion correspond to the proof offered, if 
substantial justice will be thereby pro- 
moted. Adams v. Adams, 79 W. Va. 
546, 92 S. E. 463. 

Upon a variance between a declara- 
tion and the proof, the plaintiff may 
amend by filing an additional count. 
Maury & Co. v. Western Union Tel. 
Co., 10 Va. L. Reg. 991. 

It is no abuse of judicial discretion 
for the trial judge, on excluding plain- 
tiff's evidence because of a variance, 
to suggest the right of amending the 
declaration, and on his own motion to 
give opportunity therefor. Savings, 
etc., Co. V, Ballentyne, 71 W. Va. 672, 
77 S. E. 282; Hardman v. Brannon, 70 
W. Va. 726, 75 S. E. 74. 

Code 1904, § 3384 (Code 1919, § 6250), 
authorizing amendments to conform 
to the proof, if substantial justice will 
be promoted and the adverse party 
not prejudiced, is to be liberally con- 
strued, and the court may allow plain- 
tiff, suing a railroad company and a 
special police officer for unlawful arrest, 
to amend his declaration so as to state a 
cause of action on the theory that an 
employee of the company assisted the 
officer in making the arrest, while the 



Amendments 



177 



original declaration proceeded on the 
theory that the company was liable for 
the acts of the officer. Norfolk, etc., 
R. Co. V. Perdue, 117 Va. Ill, 83 S. E. 
1058. See ante, *' Amendments to Con- 
form to Proof — Variance," II, C. 

h^. What Constitutes an Amended 
Declaration. 
A reproduction of the original dec- 
laration with a new count added, en- 
titled "amended declaration," and so 
designated and treated in the order of 
the court filing it, is deemed an amended 
declaration, not a new and independent 
one. Lawson v, Williamson Coal, etc., 
Co., 61 W. Va. 669, 670, 5? S. E. 258. 

j. Effect of Amendment on Running 
of Statute of Limitations. 

See post, LIMITATION OF AC- 
TIONS. 

k. Amendment as Waiver of Error in 
Previous Rulings. 

Where a demurrer to a bill for want 
of proper parties is sustained and the 
complainant amends his bill, he is 
deemed to have waived objection to 
the adverse ruling. Helm v. Lynch- 
burg Trust, etc.. Bank, 106 Va. 603, 56 
S. E. 598. 

L Effect on Original Pleadings. 

When Original Declaration WUl Be 
Considered as Abandoned. — Where an 
amended declaration, complete in it- 
self, does not refer to or in any manner 
adopt or make the original declaration 
a part of it, and the defendant joins 
issue thereon, the original declaration 
will be considered and treated as with- 
drawn and abandoned. Kinder v. 
Boomer Coal, etc., Co., 83 W. Va. 32, 
95 S. E- 580; Shafer v. Security Trust 
Co., 82 W. Va. 618, 97 S. E. 290; Bart- 
ley V. Western Maryland R. Co., 81 W. 
Va. 795, 95 S. E. 443, 446; Roberts v. 
United Fuel Gas Co.., 84 W. Va. 368, 
99 S. E. 549. 

*This rule forbids an examination of 
the sufficiency of the averments of the 
former basic pleading." Shafer v. Se- 



curity Trust Co., 82 W. Va. 618, 97 S. 
E. 290, 291. 

"It is apparent that this case was 
tried upon the amended declaration to 
which there was no demurrer, and 
which states a good cause of action. 
Therefore we need not notice the first 
assignment of error which concerns 
questions raised by the demurrer to 
the original declaration. Virginia 
Cedar Works v, Delea, 109 Va. 33», 64 
S. E. 41." Washington, efc, R. Co. 
V, Cheshire, 109 Va. 741, 743, 65 S. E. 
27. 

Effect of Amendment on Plea ol Non 
Est Factum. — Although not technically 
a proper plea to a declaration in debt 
on an unsealed writing, a plea of non 
est -factum, filed to such declaration, 
and not withdrawn when the declara- 
tion is thereafter amended so as to 
show the writing declared on to be 
sealed, becomes a plea to the declara- 
tion as amended. Adams v. Adams, 79 
W. Va. 546, 92 S. E. 463. 

1^. Effect of Second Amended Dec- 
laration and the Withdrawal 
Thereof. 

Plaintiff filed a declaration to which 
defendant demurred. Before the de- 
murrer was passed upon, plaintiff filed 
an amended declaration to which de- 
fendant also demurred. Before this 
demurrer was passed upon, plaintiff 
filed a second amended declara- 
tion, which was overruled. There 
was a demurrer to this second 
amended declaration which was over- 
ruled. The third declaration was in- 
tended as a substitute for the other 
two, and the case was tried upon the 
third declaration. Under such circum- 
stances, the case stood as though the 
first and second declarations had not 
been filed so far as it related to the 
mere statement of facts, and did not 
affect the question of making a new 
case or the statute of limitations, and 
plaintiff was not bound by the allega- 
tions as to how the accident happened 



—32 



178 



Amendments 



contained in the first two declarations. 
Trotter v, DuPont De Nemours & Co., 
124 Va. 680, 98 S. E. 621. 

When a second amended declaration 
was withdrawn on the day on which it 
was filed, the cause stood practically 
as if the second amendment had never 
been filed. The filing and immediate 
withdrawal of the latter could not have 
prejudiced the defendant. Carpenter 
V. Meredith, 122 Va. 446, 96 S- E. 635. 

1^. Waiver of Error in Allowing 
Amendniient 

After the plaintiff had rested and 
the defendant had introduced one wit- 
ness, the court allowed the plaintiff to 
amend the declaration by setting out 
the precise dates upon which various 
contracts and sales had been made, and 
the point was raised that the declara- 
tion as amended misjoined causes of 
action. The action was trespass on 
the case in tort and it was claimed that 
the third count in the declaration was 
in contract. Even if the point had 
merit, inasmuch as defendant had failed 
to specify this ground in its original 
demurrer, and had pleaded not guilty, 
it had been waived. Standard Paint 
Co. V. Victor & Co., 120 Va. 595, 91 S. 
E. 752. 

m. Pleading to Amended Declaration. 

A demurrer to an amended declara- 
tion, which makes no reference to the 
original, challenges only the sufficiency 
of the pleading, and does not raise the 
question whether the amendment in- 
troduces a new cause of action, which 
can be raised only by objection to the 
filing or motion to strike. Roberts r. 
United Fuel Gas Co., 84 W. Va. 368, 
99 S. E. 549. See post, DEMUR- 
RERS. 

d. Of Pleas. 

A motion to amend the statement of 
grounds of defense is addressed to the 
sound discretion of the court *and 
should generally be allowed where any 
element of accident, surprise or mis- 
take renders it advisable to amend a 



pleading at trial, but it is properly re- 
fused where the new matter sought to 
be introduced has been known to the 
parties from the beginning of the ac- 
tion, and they simply neglected to in- 
sert it. Defenses not embraced in the 
statement, nor otherwise set out in 
the pleadings, can not be made. Hur- 
ricane Lumber Co. v, Lowe, 110 Va. 
380, 66 S. E. 66. 

Right of Defendant to Amend so as 
to Allege Was Entitled to a Credit. 
— In a proceeding by motion, under 
Code, § 3211 (Code 1919, § 6046), to re- 
cover a specified sum, a part thereof 
was evidenced by an open account and 
the residue by a note, subject to a pay- 
ment of a certain sum. The defend- 
ant admitted a part of the claim and 
pleaded nonassumpsit as to the resi- 
due. To sustain his part the defen- 
dant produced a written contract for 
building construction and proposed to 
prove the amount due upon it as a pay- 
ment in part of the plaintiff's demand; 
objection was raised and sustained to 
its admissibility on the ground that it 
amounted to an oflf-set. Held, that 
the defendant should have been al- 
lowed to amend his defense so as to al- 
lege that he was entitled to a credit for 
building construction for the plaintiff 
in pursuance of the contract men- 
tioned. Whitley v. Booker Brick Co.. 
113 Va. 434, 74 S. E. 160, citing Per- 
kins V. Hawkins, 9 Gratt. (50 Va.) 649, 
653. 

35^. Of Demurrers. 

Va. Code 1919, § 63 15. 

4. At What Stage of Proceedings. 

Va. Code 1919, §§ 6095, 6104; Barnes 
Code W. Va. p. 1111, ch. 125, § 12. 

A very large discretion is vested in 
the trial courts as to the time of filing 
and perfecting pleadings, and the Su- 
preme Court of Appeals will not re- 
verse a ca&e unless the action is clearly 
erroneous and harmful. Dean v. Dean 
122 Va. 513, 95 S. E. 431. See post, 
APPEAL AND ERROR. 



Amendments 



179 



"When no vested rights will be dis- 
turbed, nor the cause of action or de- 
fense substantially destroyed, or the 
theory of the case altered, amendments 
should be permitted at any time be- 
fore or after trial if substantial justice 
will thereby be promoted. 21 R. C. L. 
577; Burk's Pleading and Practice, § 
312; Ellinghouse v, Ajax Livestock 
Co., 51 Mont. 275, 152 Pac. 481, L. R. 
A. 1916D, 836, and elaborate note be- 
ginning on page 841." Long v. Poca- 
hontas Consol. Collieries Co., 83 W. 
Va. 380. 98 S. E. 289, 290. 

'*In the case of Whitley v. Booker 
Brick Co., 113 Va. 434, 74 S. E. 160, 
this court decided that it is within the 
discretion of the trial court at any 
time before verdict was rendered to al- 
low amendments of the pleadings which 
will operate in favor of justice, and 
that the rights of the opposite party 
can always be protected by a postpone- 
ment of the case, or a continuance, as 
circumstances may require.*' Dean v. 
Dean, 122 Va. 313, 515, 95 S. E. 431. 
See post, CONTINUANCES. 

The act of March 27, 1814 (Acts 
1914, p. 641; Code 1919, § 6104), gives 
the right of amendment "at every 
stage of the proceeding." The ob- 
ject of the act, as its title imports, was 
to eliminate useless technicalities and 
to prevent vexatious delays. It was 
passed ''in furtherance of justice," and 
was never intended to apply to a case 
where the effect of the amendment 
would be to encourage pleading by 
piecemeal and unnecessary delay in 
the termination of the litigation. In- 
deed, it may be well doubted if the 
statute is anything more than declara- 
tory of the preexisting law. Davis v. 
Alderson, 125 Va. 681, 100 S. E. 541, 

"Our statute, § 8, ch. 131, Code 
1906, authorizes such amendments (of 
a declaration), even in the midst of the 
trial." National Bank v. Lynch, 69 W. 
Va. 333, 334, 71 S. E. 389. 

Insertion of Name of Beneficial 
Plaintiff. — A plaintiff may, after ver- 



dict in his favor, amend his declaration 
by inserting the name of a beneficial 
plaintiff after his own name. Kain 
V, Angle, 111 Va. 415, 69 S. E. 355. 

Amendment of Declaration by Fill- 
ing in Blanks. — A declaration may be 
amended, during the trial and before 
verdict, by filling in blanks, if substan- 
tial justice will thereby be promoted. 
Shires v. Boggess, 72 W. Va. 109, 77 
S. E. 542. 

Amendment to Conform to Proof. — 
Where on a trial objections are timely 
made to the introduction of evidence 
upon the ground of variance, or the 
question of such variance is otherwise 
seasonably presentec^^ the pleader 
should not be permitted to amend his 
declaration or other pleading after ver-. 
diet. Long v. Pocahontas Consol. 
Collieries Co., 83 W. Va. 380, 98 S. E. 
289. 

As in this case no objection to the 
evidence for a variance was at any 
time interposed, nor any motion made 
to exclude on this or any other ground, 
the plaintiff was erroneously denied 
the right to amend his declaration as 
proposed, even after verdict. Long v, 
Pocahontas Consol. Collieries Co., 83 
W. Va. 380, 98 S. E. 289 291. 

In an action for damages for fraud 
and breach of warranty in the sale of 
defective roofing, the dates of the sev- 
eral sales were each alleged in the 
declaration under a videlicet. The de- 
fendant knew the precise dates of each 
sale, and after one of its witnesses had 
supplied those dates the court permitted 
each count in the declaration to be 
amended by the insertion of the pre- 
cise dates. Such amendments were 
not material, and if they were, were 
fully authorized by § 3384 of the Code 
(Code 1919, § 6250), and the Act of 
March 27, 1914 (Acts 1914, ch. 331. p. 
641. [Code 1919, 6104]). Standard 
Paint Co. v. Victor & Co., 120 Va. 595, 
91 S. E. 752. See ante, "Amendments 
to Conform to Proof — Variance,*' II, C; 



180 



Amendments 



"Variance between Declaration and 
Proof," II, H, 1. hJ4. 

When evidence to sustain a demand 
for rent has been admitted under a dec- 
laration containing no counts other 
than the indebitatus counts for goods, 
etc., sold and delivered, work and la- 
bor, money lent, advanced, etc., money 
had. and received and an account 
stated, the errors committed and the 
variance occasioned by its admission 
may be cured by amending the dec- 
laration at any time before verdict, if 
the defendant waives the right to a 
continuance which the act of amend- 
ment gives him. Lawson v, William- 
son Coal, etc., Co., 61 W. Va. 669, 670, 
57 S. E. 258. See post, CONTINU- 
ANCES. 

In the instant case an amendment 
had been suggested by the judge pend- 
ing the introduction of the evidence, 
and he had further stated that the 
question would be certain to arise 
(again when they came to consider the 
instructions. On argument certain 
instructions were objected to by de- 
fendant's counsel on the ground that 
the declaration was not broad enough 
to warrant them. The court took 
time to consider the instructions, and 
while considering the instructions the 
judge had a copy of the declaration in 
which he inserted in pencil the sug- 
gested amendments, and when he re- 
turned into court he called attention to 
what he had done, and council for the 
plaintiff accepted and adopted the 
amendment. The defendant did not 
claim that it was taken by surprise by 
the amendment, nor was any motion 
made to delay the trial, nor does it ap- 
pear how. if at all, the defendant was 
injured thereby. Held: That there 
was no error in the ruling and action 
of the trial court in this matter. Du 
Pont, etc., Co. v, Snead, 124 Va. 177. 
97 S. E. 812. 

Amendment Presenting Essentially 
New Case. — In an action against a car- 
rier for delay in delivery of potatoes 



consigned to the carrier, the declara- 
tion alleged that defendant was bound 
to deliver the potatoes to the consignee 
at the point of destination "not later 
than the 19th of July, 1917," and the 
breach assigned is that it did not de- 
liver the consignment until *'the 20th 
day of July, 1917." Plaintiff thereupon 
proved a delivery on July 19th and 
rested. Subsequently, during the argu- 
ment before court on a demurrer to 
the evidence and after the jury had 
returned its verdict and been dis- 
charged, counsel for plaintiff asked 
the court for leave to amend the dec- 
laration by substituting July 16th for 
July 19th. The record did not show 
that the dates were inserted in the 
declaration by inadvertence or mistake. 
Held: That it was then too late for the 
defendant to meet an essentially new 
case on an amended declaration by 
new evidence; and the court no longer 
possessed the power to control the 
situation. To such case the special 
enactment in respect to demurrers to 
the evidence applies. It empowers 
the court to permit "new evidence to 
be admitted, or a nonsuit to be taken 
until the jury retires from the box," 
but not afterwards. Pollard's Supp. 
1916, p. 675. Cooper, v. Norfolk 
Southern R. Co., 125 Va. 73. 99 S. E. 
606. 

Trial courts are invested with broad 
powers in allowing amendments in the 
interest of justice, but they have no 
power to disregard the mandatory pro- 
vision of Pollard's Supp., 1916, p. 675. 
(Code 1919, § 6117). In the instant 
case, if plaintiff's request to amend 
had been granted to avoid a hardship 
of his own making, a more serious mis- 
chief would have been imposed upon 
the defendant, who was free from 
fault. The jury had returned its 
verdict on the demurrer to the evidence 
under pleadings and evidence that 
plainly entitled the defendant to a 
judgment; yet the proposed amend- 
ment, if allowed, might have called for 



Amendments 



181 



a different judgment in the then state 
of the case, when it was too late for the 
defendant to meet the new case by 
new evidence. The remedy of the 
plaintiff, on the other hand, was com- [ 
plete; he could have met a self-imposed 
dilemma of which he had timely notice 
either by motion to amend the plead- • 
ings or by suffering a non-suit before 
the jury retired. But he did neither, 
and by the express terms of the sta- 
tute his motion came too late after 
the jury had retired. Cooper v. Nor- 
folk Southern R. Co., 125 Va. 73, 99 
S. E. 606. See post, DEMURRER TO 
THE EVIDENCE; DISMISSAL, 
DISCONTINUANCE AND NON- 
SUIT. 

Amendment to Special Plea of Set- 
off. — In an action by a contractor for 
a balance due for work and labor done, 
defendant filed a special plea of set-off 
claiming damages for defective work 
done. After all the evidence in chief 
had been introduced on both sides, and 
during the examination of the witnesses 
put on by the plaintiff in rebuttal, the 
defendant moved for leave to amend 
its special plea of set-off by inserting 
an averment of the plaintiff's insol- 
vency, and that plaintiff violated the 
contracts by doing its work under 
them in an unworkmanlike manner, and 
that plaintiff covered up and concealed 
from view such defective and faulty 
work, whereby defendant was misled. 
Held: That the court correctly exer- 
cised its discretion in refusing to allow 
the plea to be amended at that time. 
Richmond College v. Scott-Nuckols 
Co., 124 Va. 33», 98 S. E. 1. 

Amendment of Defendant's Affidavit 
to Confonn to W. Va. Code, ch. 1S5, 
§ 46. — ^When the form for verification 
of pleadings, prescribed by § 42, ch. 
125, Code 1906, is insufficient as an 
affidavit by defendant under § 46 of the 
same chapter, the court properly re- 
fused after an adjournment of term, to 
permit it to be amended to conform to 
the requirements of such affidavit. 



Woods V. Tetter, 72 W. Va. 668, 79 S. 
£. 658. ^ 

5. Refusal to Allow Amendment. 

a. In General. 

See ante, APPEAL AND ERROR. 

b. Remand with Directions to Amend. 
See post, APPEAL AND ERROR. 

IIL OF BILL OF PARTICULARS. 

Barnes Code W. Va., p. 1120, ch. 125, 
§ 66. 

IIIJ4. OF WRITS IN GENERAL. 

"Though by the common law, some 
writs were amendable, the power of 
amendment only existed as to slight 
and formal defects." Fisher Sons & 
Co. V, Crowley, 57 W. Va. 312, 316, 50 
S. F.. 422. As to amendment of sum- 
mons and process, see post, "Sum- 
mons and Process," VIII. 

IV. OF SCIRE FACIAS. 

See post, SCIRE FACIAS. 

VII. OF ATTACHMENTS. 

See post, ATTACHMENT AND 
GARNISHMENT. 

VIII. OF SUMMONS AND PROC- 
ESS. 

Statutory Authority Essential for 
Substantial Amendment of Summons. 

— A summons, commencing an action 
in a court of record, can not be 
amended in any substantial particular, 
unless the statutes of amendment au- 
thorize it. Fisher Sons & Co. v, Crow- 
ley, 57 W. Va. 312, 313, 50 S. E. 422. 

Barnes Code, W. Va. p. 1112, ch. 
125, § 14; p. 681, ch. 50, § 28. 

Misnomer.— By § 1979, ch. 50, § 28, 
Code 1906, it is provided that, "in 
any case in which a defendant 
shall be proceeded against by any 
other than his true name, it 
shall be the duty of the justice, when 
his true name is ascertained, to amend 
the summons by inserting the same 
therein, and thereafter to proceed 
against him by his true name." Stout, 



182 



Amendments 



V, Baltimore, etc., R. Co., 64 W. Va. 
502, 504, 63 S. E. 317. 

"A summons not signed by the clerk 
is so fatally defective that it can not 
be amended." Fisher Sons & Co. v. 
Crowley, 57 W. Va. 312, 316, 50 S. E. 
422. 

Variance from Declaration.- Va. Code 
1919, § 6103; Barnes W. Va. Code, p. 
1112, ch. 125, § 15. 

Under § 15, ch. 125, Code 1913 (§ 
4769), a summons served on a defend- 
ant may be amended so as to correct 
a variance between it and the declara- 
tion. Shafer v. Security Trust Co., 
82 W. Va. 618, 97 S. E. 290. 

Amendment by Inserting ''Amended 
Declaration" in Place of "Declaration." 

— When an action of assumpsit has 
been remanded to rules with leave to 
file an amended declaration, and sum- 
mons issues requiring the defendant to 
appear and answer a declaration, ' and 
an amended declaration is filed, the 
court may permit the plaintiff to amend 
the writ at the bar of the court by in- 
serting "amended declaration," in place 
of the word "declaration," without 
new process. Brown v. Cook, 77 W. 
Va. 356, 87 S. E. 454. 

Amendment Proper and Description 
of Property Sufficient — In Bennett v, 
Hollinger, 66 W. Va. 385, 386, 66 S. E. 
502, an action of unlawful detainer, it is 
said: ''The verdict and judgment 
were for the property described in the 
summons as amended. We think the 
amendment was proper and the de- 
scription sufficient." 

IX. OF RETURNS. 

Va. Code 1919, § 6103. 

When a summons has been returned 
and filed, the return of the officer be- 
comes a matter of record, and cannot 
be amended except by leave of the 
court. This permission is not granted 
as a matter of course, but only in fur- 
therance of justice and in the exercise 



of an enlightened discretion after notice 
to the opposite party. The court, how- 
ever, will not suffer a proposed amend- 
ment to be made without first being 
satisfied that it is true. For this pur- 
pose it may hear evidence, but if it is 
contradictory, or the court is left in 
doubt and uncertainty as to what the 
truth is, it will not permit the amend- 
ment. Park Land, etc., Co. v. Lane, 
106 Va. 304, 55 S. E. 690. 

Amendment on Motion to Quash 
Execution Issued on Default Judgment 

— An insufficient return of service on 
the summons to answer an action may 
be amended, on a motion to quash an 
execution issued on a default judgment 
therein, notwithstanding the defendant 
appeared specially in the action and un- 
successfully sought to quash the re- 
turn. Spencer v. Rickard, 69 W. Va. 
322, 71 S. E. 711. 

Pending an appeal and supersedeas 

in the appellate court, the return of 
service of process commencing a suit 
may be amended in the lower court, 
upon proper application and notice to 
the opposite party. Gauley Coal 
Land Ass'n v. Spies, 61 W. Va. 19, 55 
S. E. 903. 

When an amendment is thus made, 
if it appears that it was properly made, 
and that the defective service is there- 
by cured, it will relate back to the time 
of service, and will obviate the error 
in that regard. Gauley Coal Land 
Ass'n V. Spies. 61 W. Va. 19, 55 S. E. 
903. 

"When the officer's return is amended 
it relates back to the date of the serv- 
ice. ♦ ♦ * and when such amend- 
ment is properly made in the circuit 
court after writ of error or appeal to 
this court and that fact made to appear 
here by supplemental record, the de- 
fect will thereby be cured." Varney 
V. Hutchinson Lumber, etc., Co., 64 
W. Va. 417, 420, 63 S. E. 203; Spencer 
V, Rickard, 69 W, Va. 322, 71 S. E. 
711. 



Amendments 



183 



X. OF INDICTMENTS, INFOR- 
MATIONS AND PRESENT- 
MENTS. 

See post. INDICTMENTS, INFOR- 
MATIONS AND PRESENTMENTS. 

XL CURE BY VERDICT— STAT- 
UTE OF JEOFAILS. 

B. DEFECTIVE OR IMPERFECT 
AVERMENTS, 

Where a declaration contains a de- 
fective statement of a good cause of 
action, this is the class of error' that 
the statute of jeofails is designed to 
cure. Richmond v. McCormack, 120 
Va. 552, 91 S. E. 767. 

A defect in a declaration which can 
not be regarded on demurrer is, by § 
3. c. 134, Code 1913 (§ 4977), cured af- 
ter verdict. Grass r. Big Creek De- 
velop. Co., 75 W. Va. 719, 84 S. E. 750. 
Barnes W. Va. Code, p. 1148, ch. 134, 
§ 3. 

Averment of the promise in a dec- 
laration in assumt>8it by implication 
or intendment only is defective and 
would be insufficient on demurrer, but, 
in the absence of. a demurrer, is cured 
by a verdict under the operation of the 
statute of jeofails. Koen v. Fairmont 
Brewing Co., 69 W. Va. 94, 70 S. E. 
1098. 

Variance between Pleading and 
Proof. — If the evidence adduced on the 
trial by plaintiff or defendant shows a 
good cause of action or defense, a de- 
fect in the pleading should be regarded 
as cured by the evidence when after 
verdict either of the parties seek an 
advantage based on variance, and if 
no substantial rights of the parties will 
be injuriously aflFccted thereby, the ver- 
dict or judgment should not be dis- 
turbed. Long v. Pocahontas Consol. 
Collieries Co., 83 W. Va. 380, 98 S. E. 
289. 



Cy2, OxMISSION OF SIMILITER. 

To a plea concluding "to the con- 
trary," a similiter only is proper, and its 
omission is cured after verdict or judg- 
ment. Weekley v, Weekley, 75 W. 
Va. 280, 83 S. E. 1005. 

E. MISJOINDER AND NONJOIN- 
DER OF ISSUE. 

In an action of assumpsit, a plea of 
"not guilty" presehts a substantial is- 
sue, and such misleading and misjoin- 
der of issue thereon will, after ver- 
dict, be cured by our statute. Banis- 
ter V. Victoria Coal, etc., Co., 63 W. 
Va. 502, 503, 61 S. E". 338. 

In an action at law, the statute of 
jeofails does not cure the nonjoinder, 
or want of issue altogether, and no 
verdict or judgment can properly be 
rendered therein. Norfolk, etc., R. 
Co. V. Coffey, 104 Va. 665, 51 S. E. 
729, 52 S. E. 367. 

L WHERE DECLARATION SETS 
FORTH NO CAUSE OF AC- 
TION. 

As malice is an essential element of 
I an action for malicious prosecution, 
' lack of an averment thereof in the dec- 
laration can not be disregarded on the 
demurrer, under the statute of jeofails, 
and is fatal. Such a defect in a dec- 
laration is not cured by verdict, when 
a demurrer to the declaration has been 
interposed and overruled. Wright v. 
Ridgley, 67 W. Va. 319, 67 S. E. 787. 

VA. OMISSION OF MATTER OF 
SUBSTANCE. 

Lack of an ad damnum clause in a 
declaration in trespass on the case is 

an omission of matter of substance and 
can not be disregarded on a demurrer 
to the declaration. When a demurrer 
has been interposed for such a defect, 
it is neither waived nor cured by the 
verdict. McGlamery v, Jackson, 67 
W. Va. 417, 68 S. E. 105. 



Amicus Curiae. 

See the title AMICUS CURIAE, vol. 1, p. 371, and references there given. 

AMNESTY.— See post, PARDON. 

AMORTIZATION. — Authorizing valuation of securities by amortization 
method. W. Va. Acts 1921, p. 475. 

AMOUNT IN CONTROVERSY.— See post. APPEAL AND ERROR; 
ATTACHMENT AND GARNISHMENT; JURISDICTION; JUSTICES 
OF THE PEACE; LANDLORD AND TENANT. 

AMUSEMENTS.— As to amusement privileges, see post, THEATERS 
AND SHOWS. As to gaming on grounds of fair association, see post, THEA- 
TERS AND SHOWS. 

ANCESTORS.— See post, DESCENT AND DISTRIBUTION. 



ANCIENT DOCUMENTS. 

CROSS REFERENCES. 

See the title ANCIENT DOCUMENTS, vol. 1, p. 372, and references there 
given. In addition, see post, BEST AND SECONDARY EVIDENCE; EVI- 
DENCE; HANDWRITING. 



Ancient Deed as Evidence. — An an- 
cient deed, made by a commissioner to 
the heirs of a deceased purchaser of 
land, under an order of sale in a pro- 
ceeding to sell it as forfeited for non- 
payment of taxes, reciting the death of 
the purchaser, and inheritance by the 
grantees, is evidence of the facts recited, 
against strangers. Webb v, Rittcr, 60 
W. Va. 193, 54 S. B. 484. 

Recitals of heirship and widowhood 
in deeds upwards of thirty years old 
under which possession has been con- 
tinuously held are presumptive evidence 
of the truth of the same, and admissi- 
ble against strangers to the title claiming 
adversely. Wilson v. Braden, 56 W. Va. 
372, 49 S. E. 409. 

Declarations in ancient deeds are ad- 
missible to prove boundary lines and 
such traditional evid-ence is admissible, 
not only that a certain tree or other 
monument marked a certain boundary 
line, but also that a public body of land, 
such as a manor, parish, or highway, 
or the like, or even a private body of 
land in which a number of persons have 



a common interest, marked such bounds 
ary line, where the declaration comes 
from one having such common interest. 
Keppler v, Richmond, 124 Va. 592, 98 
S. E. 747. 

In a suit by the owner of a lot to en- 
join the city from claiming that a part 
of the lot had been dedicated as an 
alley a deed, over thirty years old, to 
property abutting on the alleged alley 
was held admissible in evidence against 
complainants, although they were not in 
privity therewith, under the exception 
which ancient deeds afford to the rule 
as to the inadmissibility of hearsay evi- 
dence. It was admissible because of its 
declaration that the rear line of the lot 
it conveyed was on an alley. Keppler 
V, Richmond, 124 Va. 592, 98 S. E. 747. 

A public alley, or an alley in common, 
as marking the boundaries of abutting 
property owners, may be a subject upon 
which traditional declarations may be 
admissible in evidence as tending to 
prove its existence. Keppler v. Rich- 
mond, 124 Va. 592, 98 S. E. 747. 

Weight. — Declarations in an ancient 



184 



Ancient Documents 



185 



deed as to boundaries upon the existence 
or location of a way, are not entitled to 
much weight, and may be rebutted by 
very slight evidence of a more definite 
character. In the instant case the 
ancient deed itself contained ^a clause 
which rebutted any inference which 
might be drawn from it as to the exis- 
tence of the alley in question of the 
width claimed by the city. Keppler v, 
Richmond, 124 Va. 592, 98 S. E. 747. 

Where the question at issue involved 
the width of an alley ancient deeds de- 
cribing it as a wide alley, while admis- 
sible, have little probative value since 
they give no definite width. Keppler 
V. Richmond, 124 Va. 592, 98 S. E. 747. 

Deeds less than thirty years old are 
inadmissible in evidence as ancient 
deeds. Keppler v, Richmond, 124 Va. 
592, 98 S. E. 747. 

Quaere, whether recitals in a deed less 
than thirty years old are sufficient to es- 
tablish the facts recited, in an eject- 
ment suit with defendants in possession. 
Curtis V, Deepwater R. Co., 68 W. Va. 
762, 70 S. E. 776. 

Impeachment of Ancient Deed. — An 



ancient deed, bearing date in the year 
in which the apparent grantors admit 
the execution of a different kind of 
deed to the apparent grantees and 
certificates of acknowledgement appar- 
ently signed by the officer before whom 
they had acknowledged such dif- 
ferent .deed, and prodticed from proper 
custody, cannot be impeached by the 
mere recollections of witnesses as to the 
contents of the deed they executed and 
the size of the paper. Titchenell v. 
Titchenell, 74 W. Va. 237, 81 S. E. 978. 
If an ancient deed be lost, but its exis- 
tence and contents be proven by oral 
evidence; and it be also proven to have 
been recently in the possession of and 
produced by the grantee, and such ac- 
count thereof is given, as might be rea- 
sonably expected, under all the circum- 
stances, such oral evidence is admissible 
to establish such deed or grant, with- 
out otherwise proving the due execution 
and delivery thereof; and such deed 
will be treated as presumptively genuine, 
until such presumption is overcome by 
evidence to the contrary. Shaffer v. 
Shaffer, 69 W. Va. 163, 71 S. E. 111. 



ANCIENT LIGHTS.— See ante, ADJOINING LANDOWNERS; post, 
EASEMENTS. 
Not in force in W. Va.— Barnes Code, ch. 79, § 13. 

ANCILLARY ADMINISTRATION.— See post, EXECUTORS AND AD- 
MINISTRATORS. 

ANCILLARY GUARDIANSHIP.— See post, GUARDIAN AND WARD. 

ANCILLARY RECEIVERSHIP.— See post, RECEIVERS. 

AND.— See post, OR. 

ANEMOMETER.— In Squilache v. Tidewater Coal, etc., Co., 64 W. Va. 337, 
346, 62 ^. E. 446, it is said: "But we are asked to hold him (the fire-boss) in- 
competent because he said he had never used an anemometer, an instrument 
not mentioned in the statute (§§ 409, 410, chap. 15H, Code 1906), but used for 
measuring air. This would be to interpolate into the statute a qualification not 
required by it. The anemometer is not one of the instruments required by the 
statute to be kept on hand or furnished by the owner. A safety lamp is. By 
it the fire-boss is required to be able to detect the presence of dangerous and 
noxious gases." See post, MASTER AND SERVANT. 



ANGUISH.— See post, DAMAGES. 



I 



ANIMALS. 

I. In Oeneral, i87. 

C. Dead or Diseased Animals and Certain Sanitary Regulations, 187. 
Vi. In General, 187. 

F. Dogs, 187. 

G. Animals as Related to or Affecting Agriculture, 187. 

n. Injuries to Animals by -Bailroads, i87. 

A. Liability in General, 187. 

B. Paramount Duty Is Safety to Passengers, 189. 

C. Unavoidable Accident, 189. 

D. Contributory Negligence and Offenses of Owner or Custodian of Ani- 

mal, 189. 
G. Frightening Horses, 189. 
H. Duty of Railroad to Fence, 190. 

1. Common Law, 190. 

2. Code Provisions, 190. 

J/^a. In General, 190. 

a. Failure to Fence, 190. 
H}/^. Pleading. 190. 
I. Evidence, 190. 

1. Proof of Negligence, 190. 

a. Burden of Proof upon Plaintiff, 190. 

b. Sufficiency of Evidence, 191. 

c. Question for Jury, 191. 
J. Damages, 191. 

m. Injuries to Animals on Public Highways, i9i. 

C. Frightening Horses, 191. 

IV. Animals Sunning at Large, i92. 

A. General Rule and General Treatment, 192. 
•C. Fence Laws, etc. — Constitutional Law, 192. 

E. Right to Distrain Trespassing Animals, 192. 

V. Vicious Animals— Liability of Owner, i93. 
VI. Enclosures and Certain Trespasses, i94. 
Vn. Estrays and Drift Property, i94. 
Vm. Veterinarians, i94. 

CROSS REFERENCES. 

See the title ANIMALS, vol. 1, p. 373, and references there given. In addi- 
tion, see post, CRUELTY TO ANIMALS; FALSE PRETENSES AND 
■CHEATS; FISH AND FISHERIES; GAME AND GAME LAWS; LAR- 
CENY; LICENSES; LIVERY STABLE KEEPERS; RAILROADS; 
STREETS AND HIGHWAYS; SUNDAYS AND HOLIDAYS; TAX- 
ATION; As to master's duty to furnish servant a safe mule, and assumption of 
risk, see post, MASTER AND SERVANT. As to duties and liabilities of 
railroads with respect to cattle guards and fences, see post, RAILROADS. 

186 



Animals 



187 



I. IN GENERAL. 



C. DEAD OR DISEASED ANI- 
MALS AND CERTAIN SANI- 
TARY REGULATIONS. 

Yi, In General. 

Va. Code 1919, §§ 906-920, 1155-1228, 
1289, 1554, amended by Va. Acts 1918, 
pp. 446; Pollard's Code 1220, p. 
449; §§ 2743, 4743; Barnes Code, ch. 
15 D, §§ 1-56, W. Va. Acts 1919, p. 369, 
amending Barnes Code 1918, ch. 15 D, 
§§ 11, 22, 23, ch. 15 L, §§ 1-3, ch. 39, 
|§ 25, 27, ch. 43, § 56a. (75), ch. 150, § 
20 d. (1), W. Va. Supp. 1918, §§ 437a-438, 
superseding Barnes Code, ch. 15 D, §§ 
22-30. 

F. DOGS. 

Va. Code 1919, §§ 412, 413, 1551-1553, 
2317-2327, 3350, 4445, 4467, 4550, Va. 
Acts 1918, p. 622, Va. Acts 1919, p. 42, 
Va. Acts 1920, p. 602; Pollard's Code 
1920, p. 597; Va. Acts 1920, ch. 369; 
Barnes Code, ch. 62, §§ 7-9a, W. Va. 
Acts 1921, p. 420, amending Barnes Code, 
ch. 62, ch. 145, § 25, ch. 149, § 14. 

Running at Large ProhilMted— Tags, 
etc.— W. Va. Code Supp. 1918, ch. 62, 
Codt Supp. 1918, ch. 62, § 3467c. 

Foreigners Not to Keep. — W. Va. 
Code Supp. 1918, ch. 62, § 3467c. 

As Property.— Va. Code 1919, §§ 2324- 
2326, 4445, 4467; Barnes Code, ch. 47, 
§31. 

Section 2324 of the code of 1919, re- 
lating to property rights in dogs, does 
not expressly or impliedly abrogate the 
common law doctrine, but only adds to 
such property rights. Under the stat- 
ute where the owner had had his dog 
assessed and paid the prescribed license 
tax, he may not only recover possession 
or recover damages for injury done the 
dog but he may prosecute one who stole 
his dog. If he has not complied with 
the provisions of the statute he has the 
lesser or base property in his dog and 
while he can recover possession, he can 
not prosecute one who stole him or main- 



tain an action for injury to him. Layton 
V. Brown, 6 Va. L. Reg. (N. S.) 179. 

At common law the owner had a quali- 
fied or base property interest in his dog, 
which was sufficient to maintain an ac- 
tion for its recovery against one in 
unlawful possession, but a dog was not 
the subject of larceny or malicious pro- 
secution. Layton v. Brown, 6 Va. L. 
Reg. (N. S.), 179. 

Keeping dogs in yard may be en- 
joined as a nuisance; and it is immater- 
ial that a town ordinance affords the 
plaintiff an easy and expeditious 
remedy. Herring v. Wilton, 106 Va. 
171, 55 S. E. 546. See post, NUI- 
SANCES. 



G. ANIMALS AS RELATED TO OR 
AFFECTING AGRICULTURE. 

See ante, "Dead or Diseased Animals 
and Certain Sanitary Regulations," I, 
C; post, **Animals Running at Large," 
IV; "Enclosures and Certain Trespas- 
ses," VI; "Estrays and Drift Property," 
VIL 

Male Breeding Animals. — W. Va. Acts 
1921, p. 455, amending W. Va. Acts 1917, 
W. Va. Supp. 1918, § 3857; Va. Code 
1919, § 4744. 

Lien for Services of Stallion, etc — 
W. Va. Supp. 1918, § 3857; Va. Code 

1919, § 6446. 

Purchase of Breeding Stock by Cer- 
tain State Institutions.— Pollard's Code 

1920, p. 754, Va. Acts 1920, ch. 290, p. 
405. 

Stock Foods.— Va. Code 1919, §§ 1229- 
1249. 

Driving Unbrandod Sheep. — Va. Code 
1919, § 4742. 

IL INJURIES TO ANIMALS BY 
RAILROADS. 

A. LIABILITY IN GENERAL. 

See post, "Failure to Fence," II, H, 
2, a. 

FaOure to Give Crossing Signals. — Va. 
Code 1919, § 3959; Barnes Code, ch. 54, 
§ 6L 

The failure to ring the bell or sound 



188 



Animals 



the whistle, to frighten animals off the 
track, is not, per se, negligence. Whelan 
V. Railroad Co., 70 W. Va. 442, 74 S. E. 
410. 

Must Use Ordinary Care. — A rail- 
road company is bound to use ordinary 
care to prevent injuries to animals on 
its tracks and right of way. Hanger 
Bros. V. Chesapeake, etc., R. Co., 70 W. 
Va. 212, 73 S. E. 713. 

Discovery of Danger. — The servants 
of a railway company are equally bound 
to adopt the ordinary precaution to dis- 
cover danger to animals as to avoid its 
consequences after it becomes known. 
Hanger Bros. v. Chesapeake, etc., R. 
Co., 70 W. Va. 212, 73 S. E. 713. 

It is the duty of the engineer to 
keep a reasonable lookout for dumb 
animals trespassing on the tracks. 
Whelan v. Railroad Co., 70 W. Va. 
442, 74 S. E. 410. 

It is the duty of the servant of a rail- 
road company in charge of its trains 
to keep a lookout for stock up- 
on the tracks and if stock happens to be 
on the track and is killed by the train, 
the company is liable for the value of the 
stock so killed if the killing could have 
been avoided by the exercise of ordinary 
care; that is, if it could have been seen 
in time to have avoided the killing by 
the use of ordinary care, though it may 
not actually have been seen in time 
to avoid the killing. Robbins v. Rail- 
road Co., 62 W. Va. 535, 59 S. E. 512; 
Carper v. Monongahela Valley Tract. 
Co., 78 W. Va. 282, 286, 88 S. E. 843. 

"Ordinary care does not mean extraor- 
dinary care. It means such care as the 
employees of the railway company, un- 
der all the circumstances and consistent 
with their other duties should have ob- 
served respecting such dumb animals 
on the track. The evidence in the 
present case does not bring it within 
the rules of those cases. The motor- 
man swears that he could not and did 
not see the steer in question in time 
to have avoided killing him. No one 
contradicts him; the facts do not con- 



tradict him, and a case of actionable 
negligence is not made out." Carper 
V, Monongahela Valley Tract. Co., 78 
W. Va. 282, 286, 88 S. E. 843; Under- 
wood V. Chesapeake, etc., R. Co., 78 W. 
Va. 409, 410. 89 S. E. 2. 

A railroad company is not bound, in 
the exercise of the ordinary care and 
prudence required of it for the safety 
of trespassing animals, to maintain such 
a constant and rigid observation of the 
track, as will enable it to discover, at 
the inception of their trespass, animals 
coming on it near a curve, in advance 
of a train, and quickly proceeding around 
the curve and beyond the range of view. 
Ellison V, Norfolk, etc., R. Co., 83 W. 
Va. 316, 98 S. E. 257. 

Nor can it be deemed or held to be 
guilty of negligence for failure to dis- 
cover animals on its track, at the end of 
a curve around which a train is passing, 
at a point so near to the curve as to al- 
low the enginemen only two or three 
second's in which to discover them, de- 
termine what course to pursue and apply 
the brakes. Ellison v. Norfolk, etc., 
R. Co., 83 W. Va. 316, 98 S. E. 257. 

Same— Character of Train. — It is man- 
ifestly immaterial whether the injury 
was occasioned by a passenger train, 
a freight train or a work train. The 
duty to maintain a lookout and to have 
the engines equipped with suitable head- 
lights is imposed upon railroad com- 
panies in respect of all of their trains." 
Kay V. Director General, 86 W. Va. 93, 
95, 103 S. E. 108. 

Same— Effect of Stock Law.— Section 
3, chap. 59 of the acts of 1919, making it 
unlawful for horses, cattle, etc., to run 
at large on a railroad right of way and 
fixing a penalty on the owner if injury 
to property results therefrom, does not 
relieve a railroad company from the duty 
of keeping a reasonable lookout for such 
animals upon its tracks. Warden v, 
Hines, 87 W. Va. 756, 106 S. E. 130. 

Headlight. — It is negligence per se 
for a railroad company, in the night 
time, to run an engine backwards over 



Animals 



189 



its main track without a proper head- 
light on the tender sufficient to ena- 
ble the enginemen, in the exercise of 
reasonable and ordinary care, to see 
ahead a reasonable distance, so as to 
avoid doing injury to dumb animals 
astray upon the track. Hanger Bros. 
V. Chesapeake, etc., R. Co., 70 W. Va. 
212, 73 S. £. 713; distinguishing Melton 
i\ Railroad, 64 W. Va. 168, 61 S. E. 
39. 

B. PARAMOUNT DUTY IS 
SAFETY TO PASSENGERS. 

*lf the servants of a railroad com- 
pany in charge of a train, by exercise 
of ordinary care, can see and save do- 
mestic animals which have wandered 
on the railroad, it is their duty to do 
so; but this duty must be exercised 
consistently with the paramount duties 
they owe to the passengers on the train 
under their charge." Hanger Bros. v. 
Chesapeake, etc., R. Co., 70 W. Va. 
212. 215, 73 S. E. 713, quoting from 
Kirk V. Norfolk, etc., R. Co., 41 W. 
Va. 722, 24 S. E. 639. 

C. UNAVOIDABLE ACCIDENT. 

The killing of a horse on a railroad 
track by a railroad train, under cir- 
cumstances which show that such kill- 
ing was an unavoidable accident does 
not make the railway company liable 
for damages therefor. Christian v. 
Chesapeake, etc., R. Co., 78 W. Va. 
378. 89 S. E. 17. 

The killing of a cow by a motor, haul- 
ing a train of loaded cars, where it is 
shown by positive evidence that the cow 
came from behind a plank fence where 
she was hid from the view of the mot- 
orman, and onto the railroad crossing 
about thirty fe^ before the rapidly mov- 
ing train, making it impossible to pre- 
vent the killing, although the service 
brakes were immediately set, will not 
justify a verdict and judgment against 
the railroad company for negligence, al- 
though it appeared from the evidence 
that the crossing could have been seen 
by the motorman, by aid of the headlight, 



for a distance of one hundred and fifty 
yards or more. Warden v. Hines, 87 
W. Va. 756, 106 S. E. 130. 

D. CONTRIBUTORY NEGLI- 
GENCE AND OFFENSES OF 
OWNER OR CUSTODIAN OF 
ANIMAL. 

Va. Code 1919, §§ 4469, 4475. 

Driving cattle on track without look- 
ing or listening for trains may preclude 
recovery for their injury by a train un- 
less the trainmen were negligent after 
being chargeable wSth notice of the 
dangerous position of the cattle, and but 
for such negligence could have pre- 
vented collision with the animals. Jones 
v. Hines, 85 W. Va. 496, 102 S. E. 143. 

Duty of Trainman to Trespassing 
Horaie.~-Plaintiff's negligence in per- 
mitting his horse to stray upon a rail- 
road track, does not relieve the railroad 
company's servants from the exercise of 
reasonable care to avoid injuring him. 
Whelan v. Railroad Co., 70 W. Va. 442, 
74 S. E. 410. 

G. FRIGHTENING HORSES. 

When a horse becomes fright- 
ened upon a public highway, at the mere 
sight of a train or at the noise 
necessarily incident to the running of 
the train and the opcrr.tion of the 
road, and injures itself, the railroad 
company is not responsible, in the ab- 
sence of negligence on the part of the 
company. Kunkle v, Baltimore, etc., 
R. Co., 77 W. Va. 650, 652, 88 S. E. 113, 
citing Southern R. Co. v. Cooper, 98 Va. 
299, 36 S. E. 388. 

Horse Frightened at Hand Car Near 
Crossing — Pleading. — It was necessary 
to aver that the hand car was, under the 
circumstances stated, an object of such 
unusual or extraordinary appearance as 
to have a natural tendency to frighten 
horses of ordinary gentleness and train- 
ing, although that was a question to be 
determined by the jury from all the cir- 
cumstances of the case, under proper 
instructions from the court. Norfolk, 
etc., R. Co. V. Gee, 104 Va. 806, 52 S. 

E. 572. 



1 



190 



Animals 



H. DUTY OF RAILROAD TO 
FENCE. 

1. Common Law. 

In the absence of a contractural or 
statutory requirement, it is not the 
duty of a railroad to fence its track. 
Starks v. Baltimore, etc., R. Co., 77 
W. Va. 93, 87 S. E. 88; McCreary v. 
Chesapeake, etc., R. Co., 77 W. Va. 
305, 87 S. E. 374. 

2. Code Provisions. 

$^a. In General. 
Stock Injured on £nclo«ed Track.—* 

Va. Code 1919, § 3948. 

Lateral Railroad8.-<-Barnes Code ch. 
54, § 69a (7). 

Condemnation of Right of Way. — 

In absence of contract stipulation or ex- 
press statutory provision, a railroad com- 
pany is not required to fence its right 
of way. Section 14, ch. 42, Code (Barnes 
Code, ch. 42, § 14), requires such 
inclosure only when the right of way 
is acquired by condemnation. Starks v. 
Baltimore, etc., R. Co., 77 W. Va. 93, 87 
S. E. 88; McCreary v. Chesapeake, etc., 
R. Co., 77 W. Va. 305, 87 S. E. 374. 

Liability for Trespass by Cattle Pas- 
sing through Culvert under Track. 
— Where a railroad right of way 
is the dividing line between two land- 
owners, and is fenced on both 
sides, except at a necessary culvert, 
where the fences are brought in to each 
side of the culvert, so as to make it im- 
possible for cattle to get upon or over 
the track, the fact that cattle of one land- 
owner can and do pass through the cul- 
vert under the track and trespass upon 
the other landowner does not make the 
railroad company liable to the latter for 
the damage, as it committed no breach 
of duty in not obstructing such passage 
through the culvert. Morgan v. N. & W. 
R. Co., 15 Va. L. Reg. 112. 

a. Failure to Fence. 

Injury to Stock on Unenclosed Track. 

— Va. Code 1919, § 3949. 



HJ4. PLEADING. 

In an action on the case for dam- 
ages for killing plaintiff's horse by a 
railway company, the declaration 
should allege clearly and distinctly 
the cause of action; and a count 
therein reciting the supposed cause of 
action under a whereas, a cum quod, 
is fatally defective on demurrer. 
Gould V. Coal, etc., R. Co., 74 W. Va. 
8, 81 S. E. 529. 

The form of declaration laid down in 
Hogg's Pleadings and Forms, page 
343, against a railroad company "for the 
negligent killing of plaintiff's horse 
while on its track" is approved as suffi- 
cient on demurrer without alleging more 
particularly than therein stated acts of 
negligence of 'omission or commission. 
Robbins v. Railroad Co.. 62 W. Va. 535, 
59 S. E. 512. 

An allegation of negligence in a dec> 
laration against a railroad company "for 
the negligent killing of plaintiff's horse 
while on its track," implies a duty on 
the part of the defendant as well as a 
breach of that duty. Robbins v. Rail- 
road Co., 62 W. Va. 535, 59 S. E. 512 

I. EVIDENCE. 

1. Proof of Negligence. 

a. Burden of Proof upon Plaintiff. 

In order to charge a railroad 
company with damages for killing 
stock upon its tracks negligence on the 
part of the company must appear, and 
the burden of showing it rests upon the 
plaintiff. Christian v. Chespeake, etc.. 
R. Co., 78 W. Va. 378, 379, 89 S. E. 17. 
citing Maynard* v. Norfolk, etc., 
R. Co., 40 W. Va. 331, 21 S. 
E. 733; Hawker v. B. & O. R. 
R. Co., 15 W. Va. 628; Talbott r. 
West. Virginia, etc., R. Co., 42 W. Va. 
560, 26 S. E. 311; Harvey Coal, etc., Co. 
V. Chesapeake, etc., R. Co., 69 W. Va. 
228, 71 S. E. 178; Underwood v, Chesa- 
peake, etc., R. Co.; 78 W. Va. 409, 410. 
89 S. E. 2, citing Layne v. Ohio River 
R. Co., 35 W. Va. 438, 14 S. E. 123. 



Animals 



191 



Operation of Road by Receiver. — In 

an action against a receiver of a rail- 
road company to recover damages for 
killing cattle by a train, it must be 
proven that the railroad was being oper- 
ated by a receiver. Hudkins v. Bush, 69 
W. Va. 194, 71 S. E. 106. 

bi Sufficiency of Evidence. 

Negligence justifying recovery against 
a railroad company for killing dumb ani- 
mals on the track must be established 
cither by positive proof of the fact, or 
by facts proven from which negligence 
may reasonably be inferred. Underwood 
V. Chesapeake, etc., R. Co., 78 W. Va. 
409, 89 S. E. 2. 

Circumstantial evidence was held suffi- 
cient to fix liability upon railroad for in- 
jury to cattle trespassing upon its track 
in the night, there being no defensive 
evidence tending to rebut inferences of 
negligence arising from such circumstan- 
tial evidence and opinion evidence based 
upon it. Kay v. Director General, 86 W. 
Va. 93, 95, 103 S. E. 108. 

Lookout — "The character of the 
ground and track and other facts the 
jury were warranted in finding from the 
evidence, justified thei further findings, 
in the absence of proof to the contrary, 
that a proper lookout was not main- 
tained and that the failure to maintain 
it was the proximate cause of the in- 
jury." Kay V. Director General, 86 W. 
Va. 93, 95, 103 S. E. 108. 

Demmrerd-^-In an action for injuries 
to plaintiff's horse, the court held 'that a 
demurrer to the evidence was rightly 
sustained. Bower v. Virginian R. Co., 
72 W. Va. 737, 79 S. E. 727. See also 
Gould V, Coal, etc., R. Co., 74 W. Va. 
8, 81 S. E. 529. 

Negligence. — ^Judgment below re- 
versed, verdict set aside, and a new trial 
awarded for want of sufficient evidence 
showing actionable negligence of defend- 
ant in killing plaintiff's mules. Apply- 
ing Toudy V. Norfolk, etc., R, Co., 38 
W. Va. 694, 18 S. E. 896, and Love- 
joy V, Chesapeake, etc., R. Co., 41 



W. Va. 693, 24 S. E. 599; Harvey Coal, 
etc., Co. V. Chesapeake, etc., R. Co., 69 
W. Va. 228, 71 S. E. 178. 

c. Question for Jury. 

In an action against a railroad com- 
pany for the negligent killing of a horse, 
trespassing upon the company's right of 
way, negligence is generally a mixed 
question of law and fact for the jury, and 
if circumstances are proven from which 
they may reasonably infer negligence, 
such, for instance, as that the horse 
could have been seen, dangerously 
near the track, by the engineer in 
charge of the train, for a distance of 
three hundred yards; that the speed of 
the train increased, and no effort was 
made to stop it until after the engine 
struck the horse; that the train was a 
light one making only a half a load 
for the engine, the case should go to 
the jury. Whelan v. Railroad Co., 70 
W. Va. 442, 74 S. E. 410. 

Where a railroad company is so op- 
erating an engine, in the night time, 
runs over and kills a horse astray upon 
its track, and the evidence is such that 
the jury may reasonably infer that had 
there been a proper headlight on the 
tender in front of the moving train the 
enginemen, in the exercise of due and 
reasonable care, would probably have 
discovered the horse on the track in 
time to have avoided- injuring him, 
the question of negligence is one of 
mixed law and fact for the jury, and 
the court should not for want of suffi- 
cient evidence to support it set aside a 
verdict in favor of the owner of the 
horse, and award defendant a new 
trial. Hanger Bros. v. Chesapeake, 
etc., R. Co., 70 W. Va. 212, 73 S. E. 713. 

J. DAMAGES. 

Va. Code 1919, §§ 3994-3997. 

III. INJURIES TO ANIMALS ON 
PUBLIC HIGHWAYS. 

C. FRIGHTENING HORSES. 

See ante, "Frightening Horses," II, G. 
The owner of a boiler near a high- 



192 



Animals 



way, on which boiler is a large steam 
whistle used for giving employees time 
for beginning and closed work, which, 
when blown makes a loud, coarse noise 
calculated to frighten horses, must not 
blow the whistle negligently, but must 
keep a lookout for horses on the high- 
way, and is liable for injury resulting 
from the fright and running away of 
horses on the highway caused- by blow- 
ing the whistle when such horses are 
near it. Truex v. South Penn Oil Co., 
62 W. Va. 540, 59 S. E. 517. 

IV. ANIMALS RUNNING AT 

LARGE. 

See post, "Vicious Animals — Liability 
of Owner," V, "Enclosures and Certain 
Trespasses," VI; "Estrays and Drift 
Property," VII. 

A. GENERAL RULE AND GEN- 
ERAL TREATMENT. 
"It was the rule of the common law 

that the owner of animals was required 
to confine them on his own premises, 
and if he failed to do so, and they tres- 
passed upon the lands of another and 
did injury, either to his clothes, person, 
or animals, defendant was liable. Thus 
it was held, in an English case, where a 
horse bit and kicked a mare through 
a fence that the owner of the horse was 
liable. Lord Coleridge, in that case, 
says: 'It seems tome sufficiently clear 
that some portion of the defendant's 
horse's body must have been over the 
boundary. That may be a very small 
trespass; but it is trespass in law.' 
Ellis V. Loftus Iron Co., L. R. 10, C. P. 
10. But the rule of the common law re- 
quiring the owners of animals to keep 
them confined on their own land is no 
part of the law of West Virginia." 
Johnston v. Mack Mfg., Co., 65 W. Va. 
544, 545, 64 S. E. 841. 

No Duty to Keep within Close.— The 
common-law rule requiring the owner of 
stock to keep them within his own close, 
does not prevail in Virginia, except 
where the no-fence law is in force, as ii 
is not in Pulaski county, and each land- 



owner must fence against his neighbor's 
stock, except in case of a line fence 
under the statute applicable. Mor- 
gan V, N. & W. R. Co., 15 Va. L. Reg. 
112. 

The common law, inhibiting the run- 
ning at large of domestic animals, is 
not in force in this state, except as to 
such of them as are unruly and dan- 
gerous. Fink V. United States Coal, etc., 
Co., 72 W. Va. 507, 78 S. E. 702. 

Alternate Stock Laws. — See post, 
"Enclosures and Certain Trespasses," V. 

So much of § 2730, Code 1906, as re- 
lates to the running at large of bulls, buck 
sheep and boars, is the law only in those 
counties wherein it has been adopted by 
a vote of the people taken in the man- 
ner provided by § 2733 of the Code. 
Johnston v. Mack Mfg. Co., 65 W. Va. 
544, 64 S. E. 841. But see next para- 
graph. 

All acts pertaining to certain male 
animals running at large were re- 
pealed by W. Va. Acts 1917, Reg. 
Sess., c. 31, W. Va. Code Supp. 1918, 
•§ 3415. 

Trespass on Fenced Lands. — ^Va. 
Code J919, § 3541, Barnes Code, ch. 60, 
§ 3, as amended and re-enacted by W. 
Va. Acts 1919, ch. 59, p. 241. 

"Where the animal trespasses upon 
the land of another enclosed by a lawful 
fence, the owner of the trespassing ani- 
mal might be liable, under § 2735 
(Barnes Code, ch. 60, § 3), for a per- 
sonal injury inflicted by the animal, as 
well as for injury done to the clothes. 
This question, however, we do not de- 
cide as it does not arise in the case." 
Johnston v. Mack Mfg., Co., 65 W. Va. 
544, 548, 64 S. E. 841. See post, TRES- 
PASS. 

C. FENCE LAWS, ETC.— CONSTI- 
TUTIONAL LAW. 

Special Law8% — Va. Const., § 63. 

E. RIGHT TO DISTRAIN TRES- 
PASSING ANIMALS. 
Trespassing in Certain Counties by 
Animals of Non-Residents. — Va. Code 
1919, § 3542; Barnes Code, ch. 60, § 11a. 



Animals 



193 



No statute of general operation 

throughout this state confers right 
upon a land owner to seize and hold 
domestic animals found trespassing 
on his land as a remedy for enforce- 
ment of payment of the damages done 
by them, unless they are estrays or 
the land is enclosed by a lawful fence 
and the animals have trespassed on 
the same a third time after notice in 
writing to the owner of the two previous 
trespasses. Fink v. United States Coal, 
etc., Co., 72 W. Va. 507, 78 S. 
E. 702. 

To avail himself of the right of ac- 
quisition of title to trespassing ani- 
mals given by section 3 of chapter 60 
of the cod«, the claimant must clearly 
show strict and full compliance with 
its provisions and maintenance of a 
lawful fence. Fink v. United States 
Coal, etc., Co., 72 W. Va. 507, 78 S. 
E. 702. 

Recoupment and Set-Off. — In an ac- 
tion for the value of animals taken 
and sold as having been forfeited to 
the owner of lawfully enclosed prem- 
ises, by virtue of proceedings under 
section 3 of chapter 60 of the code 
(Barnes Code, ch. 60, § 3), the 
damages done to the property by 
the animals can neither be recouped 
nor set-off against their value. Fink 
V. United States Coal, etc., Co., 72 W. 
Va. 507, 78 S. E. 702. 

V. VICIOUS ANIMALS— LIABIL- 
ITY OF OWNER. 

Unruly and dangerous animals 
within the meaning of the law are 
such as are likely to injure other do- 
mestic animals and persons, not such 
as merely endanger real property by 
trespassing therein. Fink v. United 
States Coal, etc., Co., 72 W. Va. 507, 
78 S. E. 702. 

Owner's Knowledge of Vicious Pro- 
pensities of Animal. — Domestic animals, 
as a general rule, are not vicious, and 
are not liable to attack mankind; and 
in order to make out a case entitling 
one to recover for injury to his per- 
—13. 



son inflicted by such domestic animals it 
is necessary to allege and prove a scien- 
ter. Ingham, in his work on the Law of 
Animals, § 94, says: 'Except in the case 
of animals ferae naturae, it is essential 
to show that the owner or keeper of 
an animal knew of its vicious or danger- 
ous disposition; otherwise there can be 
no recovery for an injury committed by 
it.' " Johnston v. Mack Mfg. Co., 65 
W. Va. 54^4, 546, 64 S. E. 841. 

The owner and keeper of a boar is not 
liable for a personal injury inflicted 
by him, unless it appear that he was 
vicious, and that such owner and keeper 
had previous knowledge of his vicious 
propensity; or unless the injury was 
done while trespassing upon lands en- 
closed by a lawful fence. Johnston v. 
Mack Mfg. Co., 65 W. Va. 544, 64 S. E. 
841. 

Same^Imputable Knowledge. — The 

true doctrine is that the knowl- 
edge of the vicious propensities of an 
animal need not necessarily be actual 
in the ordinary acceptation of the 
term. Either constructive or im- 
puted notice is sufficient. If in the 
exercise of reasonable diligence and 
common prud-ence the owner ought to 
have known an animal owned or kept 
by him was dangerously inclined and 
likely would, if unrestrained, inflict 
injury upon the person or property of 
another, he is chargeable as if he had 
actual, direct and positive notice of 
acts of viciousness committed by it. 
Butts V. Houston, 76 W. Va. 604, 607, 
86 S. E. 473. 

The owner of an animal may be 
chargeable with knowledge of its vi- 
ciousness through his neglect to take 
notice of attacks frequently repeated 
upon the person or property of others, 
made near his residence and usual 
place of business, and ranging in time 
from two days to three days prior to 
the injury sought to be redressed. 
Butts V. Houston, 76 W. Va. 604, 86 
S. E. 473. 

"Thompson on Negligence, vol. 1, § 



194 



Annuity 



845, says that the trend of most 
decisions is to break away from the an- 
cient rule which made the keeper of a 
vicious animal, having knowledge of his 
vicious propensity, liable at all hazards, 
for injury done by it, and to hold him 
liable only in case of some negligent 
act as the proximate cause of the injury." 
Johnson v. Mack Mfg. Co., 65 W. 
Va. 544, 547, 64 S. E. 841. 

Testimony oflFered to prove restraint 
upon the animals following a previous 
assault by it, the restraint being a cir- 
cumstance from which, if true and un- 
explained, knowledge of its disposi- 
tion to inflict injury may reasonably be 
inferred, is admissible. Butts v. Hous- 
ton, 76 W. Va. 604, 86 S. E. 472. 

Admissibility of Expert TesdmcMiy.*- 
The habits and propensities of domestic 
animals are matters of common knowl- 
edge to all men, and expert testimony 
to prove the vicious propensities of a 
particular kind of animals, in general, 
after they become a certain age, is in- 
admissible for the purpose of proving 
that the owner of an animal of that class 
had knowlegde of his vicious propensity. 



Johnston v. Mack Mfg. Co., 65 W. Va. 
544, 64 S. E. 841. 

Question for Jury.— Whether de- 
fendant had knowledge express or im- 
plied, as to the malevolent disposi- 
tion of the horse, ordinarily is solely 
a question for the jury, upon proper 
instructions, as is also the probative 
force and value of the proof in the 
case. Butts v, Houston, 76 W. Va. 604, 
86 S. E. 473. 

VI. ENCLOSURES AND CERTAIN 
TRESPASSES. 

See ante, "Animals Running at 
Large," IV. 

Va. Code 1919, §§ 3538-3563; Barnes 
Code. ch. 60, §§ 1-lla. 

VIL ESTRAYS AND DRIFT PROP- 
ERTY. 

Va. Code 1919, §§ 3564-3572; Barnes 
Code, ch. 61, §§ 1-10. 

VIIL VETERINARIANS. 

Va. Code 1019, §§ 1272-1279; Barnes 
Code, ch. 15 D, §§ 30-42. 

State Veterinarian.— Va. Code 1919, 
§§ 908, 910, 912, 914, 916, 917, 919, 
920, 924; Barnes Cod*, ch. 151, §§ 11-13. 



ANNEXATION OF TERRITORY.— See post, COUNTIES; MUNICIPAL 
CORPORATIONS. 



ANNUITY. 

I. Definition and Oeneral Consideration, 
m. On What Property Chargeable. 

J^A. In General. 

V. Payment. 

C. Value — How Computed. 

D. Interest. 

E. Defenses against Collection. 

CROSS REFERENCES. 

See the title ANNUITY, vol. 1, p. 385, and references there given. In addi- 
tion, see post, LIMITATION OF ACTIONS; MISTAKE AND ACCIDENT. 



L DEFINITION AND GENERAL 
CONSIDERATION. 

Definition.-— "An annuity, in its strict 
sense, is a yearly payment of a certain 



sum of money, granted to another in 
fee, or for life, or for years, and charge- 
able only on the person of a grantor.** 
2 Minor's Inst., p. 31. Dulaney v. Du- 



Annuity 



195 



laney, 1Q5 Va. 42i9, 433, 54 S. E, 40. 

Particular Ezamplcv— Where a hus- 
band, by ante-nuptial contract, gives to 
his wife, in lieu of dower, the "interest" 
on $3,500, part of his estate to (be paid 
to her annually so long as she survives 
him, and she accepts it, the taxes on 
the principal sum niust be paid by the 
widow. This is not the gift of an 
annuity, though payable annually, but 
of the interest or income, from a speci- 
fied 5um, and the widow must pay the 
tax on the principal just as she would 
be compelled to do when dower is as- 
signed in kind. An annuity is usually 
chargeable only on the person of the 
grantor, but interest ;on a fund is in- 
come. Dulaney v. Dulaney, 105 Va. 
429, 54 S. E. 40. 

Annuities Issued by Life Insurance 
ComiMUiies. — Barnes Code, ch. 34, § 17. 

Action DO Annuity Bond. — Va. Code 
1919, § 6262; Barnes Code, ch. 131, 
§ 17. 

If Investment Impossible Annuity 
Will Be Commuted. — Where it is im- 
possible to invest a sum at interest 
sufficient to produce annually the sum 
to which an annuitant is entitled, the 
court will adopt some other mode of 
adjustment that will produce the great- 
est equality with the least inconven- 
ience. f.n the jcase in judgment, such 
an impossibility exists, and the trial 
court properly paid to the annuitant 
the present value of liis annuity, as 
that was as equitable as any other 
mode that could have been adopted, 
and attended with as little inconven- 
ience. American Nat. Bank v. Taylor, 
112 Va. 1, 70 S. E. 534. 

Under certain circumstances a court 
of equity can direct a gross sum to be 
paid in lieu of an annuity Without the 
consent of all parties interested. Slater 
V. Slater, 124 Va. 370, 98 S. E. 7. 

Right to Have Life Estate Paid in 
Gtossj — As a general rule, a party 
who has a life estate in a fund arising 
from jthe proceeds of a sale of land 
is not entitled to have the value of 



his life estate commuted and paid to 
him in gross instead of the annual in- 
terest on the fund, unless the parties in 
interest agree to it. American Nat. 
Bank v. Taylor, 112 Va. 1, 70 S. E. 
534. 

Agreement to Pay Annuity. — An 
agreement to pay an annuity, making 
no reference in any way to the exist- 
ence of an antecedent debt, the inter- 
est on which would equal the annual 
payments, ^or Hn any way suggesting 
the payments stipulated for are inter- 
est, can not be regarded as evidence 
of such debt or of the postponement 
of payment thereof, until the time of 
cessation of the annual payments. 
Griffith V. Adair, 74 W. Va. 646, 82 
S. E. 479. 

Same^-Parol Evidence. — Nor can 
parol 'evidence be admitted to broaden 
or extend its operation so as to give 
it such eflFect. Griffith v. Adair, 74 
W. Va. 646, 82 S. E. 479. 

Same — Presumption as to Maturity 
of Debt — ^Pre-cxi sting indebtedness of 
the person obligating himself to pay 
such an annuity, Ishown by his admis- 
sion, accompanied by his further ad- 
mission that the payments contem- 
plated were interest on the debt, is 
presumed, in (the absence of evidence 
to the contrary, to have been due and 
payable at the date -of the annuity 
agreement. Griffith v. Adair, 74 W. 
Va. 646, 82 S. E. 479. 

III. ON WHAT PROPERTY 
CHARGEABLE. 

^A IN GENERAL. 

Testator directed the payment of an 
annuity |for tfive years to his daughter 
out of his estate other than that loaned to 
his wife for life or widowhood, and 
further directed that, upon the death 
or marriage of his wife, the property 
loaned to her should be sold and the 
proceeds divided equally among all his 
children, including said daughter. 
Looking to the will as a whole, it is 
manifest that the annuity to his 



196 



Annuity 



daughter was not to be paid out of 
the property loaned to his wife. Will- 
cox V. Willcox, 106 Va. 626, 56 iS. E. 
588. 

V. PAYMENT. 
C. VALUE— HOW COMPUTED. 

When a testator charges his estate 
with the maintenance and support of 
his widow during her life, and later 
by decree a certain sum is ascertained 
as an allowance for the annual support 
of the widow, her right to such sum 
depends on her using it during her 
natural life. )Such sura can not be 
charged against the estate in favor of 
her devisee or personal representative. 
Brown v. Cresap, j6l W. Va. 315, 66 
S. E. 603. 

Where a testator directed the pay- 
ment of an annuity for five years to 
his daughter out of his estate other 
than that loaned to his wife for life 
or widowhood, the annuity to the 
daughter continued only for a period 
of five years. Willcox v, Willcox, 106 
Va. 626, »56 S. E. 588. 

A testator, by clause -2 of his will, 
devised ireal estate to his son E., for 
life, with remainder [to his children; 
and if none, to a trustee named in 
clause "3, to be held upon precisely the 
same trusts as , those declared in 
clause 3. By clause 3 he devised other 
real estate to a trustee with directions 
to lease it, and after paying expenses 
and repairs, to pay to his son M. 
$600 per annum till marriage, and 
after during his lifetime to pay him 
$1,200 per annum, if the property 
yielded so much; to invest the residue; 
and upon the death of M. the real es- 
tate and the invested funds were to 
pass to the children, if any, of M. and 
their descendants by stocks, and if no 
such children or descendants then to 
the other son E. for life, with re- 
mainder to his children or their 
descendants, as provided by clause 2. 
Clause 3 declared that the sole purpose 
of providing for M. was to furnish him 
with a maintenance and support, dur- 



ing his natural life, and forbade him 
to sell, encumber or anticipate his 
annuity; and further provided that it 
should not be liable for any of his 
debts, present or future. By clause \ 
he directed that if neither E. nor M. 
left any child, or descendant of any 
child, then the estate devised by clauses 
2 and (3 should pass to the children of 
his uncle R. The son E. died without 
any child or descendant of any child 
during the lifetime of M. The latter 
claimed that by the death of E. two 
trust funds were created, and that he 
was entitled (to receive ^600 per annum 
from each fund until marriage, and 
$1,200 from each after marriage until 
his death. Held, but one trust fund 
was created, and M. is only entitled 
to $600 per annum till marriage and 
$1,200 per annum thereafter during his 
lifetime. The assets from which the 
annuity is payable are increased, but 
not the annuity. McCurdy v. 
0*Rourke, 106 Va. 683, 56 S. E. 673. 

Annuity Table — Rules of Computa- 
tion.— Va. Code 1919, §§ 5131-5133. 
Barnes Code, ch. 65, §§ 17-20. 

D. INTEREST. 

The annual payments not having 
been made, the beneficiary is entitled 
to interest on each annual payment 
from the time it became due and pay- 
able. Willcox r. Willcox, 106 Va. 626, 
56 S. E. 588. 

E. DEFENSES AGAINST COLLEC- 

TION. 

A will by which a testator gave to 
his daughter an annuity for five years 
was admitted to probate in October, 
1878. In November, 1879, she de- 
manded ^payment of the first install- 
ment, but it was refused because the 
estate was largely indebted and de- 
lay in settlement was unavoidable. In 
1880 the executor filed his bill asking a 
construction of the will and the ad- 
ministration of the estate under the 
direction of the court. The estate, ex- 
clusive of certain property loaned to 



Answers 



197 



the testator's widow for life, was in- 
sufficient to pay his debts. The cause 
continued on the docket until 1905, 
when the daughter filed her answer de- 
manding the payment of her annuity, 
with interest. Among other defenses 
to her claim was that of laches. There 



was no death of parties, loss of evi- 
dence, or change of conditions alleged 
in support of the defense. Held, the 
daughter was not guilty of laches in 
asserting her claim. Willcox v. Will- 
cox, 106 Va. 626, 56 S. E. 588. 



ANNULMENT OF MARRIAGE.— See post, DIVORCE; MARRIAGE. 
ANOTHER SUIT PENDING.— See ante, ABATEMENT, REVIVAL 
AND SURVIVAL. 



ANSWERS. 

n. Nature and Function, i99. 

A. In General, 199. 

B. Necessity for Answer, 199. 

m. Right and Time to File, i99. 

A. General Rule, 199. 

1. In Virginia, 199. 

2. In West Virginia, 200. 

B. After Final Decree, 200. 

C. After Plea or Demurrer Overruled, 200. 
T>%. Filing at Special Term, 201. 

DJ<2. Answer to Amended Bill, 201. 

Dfi. When a Cross- Bill is Filed, 201. 

E. Effect of Failure to File or Irregularity in Filing, 201. 

IV. Formal Requisites, 201. 

C. Oath, 201. 

1. General Rule, 201. 

a. In Virginia, 201. 

b. In West Virginia, 201. 
35^. Before Whom Taken, 201. 

4. Sufficiency of, 201. 

5. Waiver of, 201. 

V. Sufficiency of Answer, 201. 

A. Must Be Full, 201. 

1. General Rule, 201. 

2. Must Contain Specific, Direct Denial, 202. 

254- Answer as to Defendant's "Remembrance, Information and Be- 
lief" May Be I Required, 202. 
21/2. Denial of Knowledge of Facts Not Denied Sufficient, 202. 

3. Answering Interrogatories, 202. 

3H. V.Tiere Second Amended Bill Adds No New Matter, 203. 

4. What Need Not Be Answered, 203. 

a. Immaterial Matter, 203. 

c. Statement of Facts Conctituting Part of Plaintiff's Case Not 

Required, •203. 
BH- Denial of Contract by Statement of It With Conditions or Limi- 
tations Not Mentioned in Bill, 203. 



198 Answers 



VI. Special Defenses Which May Be Set Up By Answer, aos. 
Vn34. Effect of Answer, 203. 
Vin. Answers by Parties in Special Instances, 203. 
EE. Objections and Exceptions to Answer, 203. 

A. In General, 203. 

C. Exceptions, 203. 

1. Office and Object, 203. 

a. In Virginia, 203. 

b. In West Virginia, 204. 

2. Grounds of, 204. 

45^^. Admissions by, 204. 
5. Disposition of, 204. 

X. Discovery and Compelling Answer, 204. 
XI. Amendment of Answers, 204. 
Xm^ Answer as Evidence, 204. 

A. General Rule, 204. 

B. Responsiveness, 205. 

D. Limitations and Exceptions, 205. 

1. Answer Setting up Affirmative Matter, 205. 

a. In Virginia, 205. 

b. In West Virginia, 205. 

3. Effect of Waiving Oath to Answer, 205. 

F. Evidence Necessary to Overcome Answer, 205. 

1. General Rule, 205. 

G. As Evidence against and for Codefendants, 206. 

1. Against Codefendant, 206. 

2. For Codefendant, 206. 

a. General Rule, 206. 

b. Exceptions to Rule, 206. 
H. Answer of Infant Defendant, 206. 
N. Admissions by Answer, 206. 

1. Express Admissions, 206. 

2. Admissions by Implication, 206. 

3. Effect of Not Answering Particular Allegations, 208. 

a. In Virginia, 208. 

b. In West Virginia, 208. 

4. Effect of Not Answering at All, 209. 

5. Admissions of an Infant or His Codefendant, 209. 

6. Whole Answer Must Be Taken Together and Explanations Con- 

sidered, 209. 

CROSS REFERENCES. 

See the title ANSWERS, vol. 1, p. 389, and references there given. In ad- 
dition, see ante, ABATEMENT, REVIVAL AND SURVIVAL; post, AP- 
PEAL AND ERROR; ATTACHMENT AND GARNISHMENT; BANKS 
AND BANKING; CORPORATIONS; CROSS BILLS; DEMURRERS; 
DISCOVERY; EQUITY; EXECUTION AND PROOF OF DOCUMENTS; 
INFANTS; LEGAL CONCLUSIONS; PLEADING; RECEIVERS. As to 



Answers 



199 



amendment of answers, see ante, AMENDMENTS. As to answers to cross 
bills, see post, CROSS BILLS. As to answer as a cross bill, see post, CROSS 
BILLS. 



IL NATURE AND FUNCTION. 

A. IN GENERAL. 

Double Office. — An answer in cases 
where pelief is sought, properly con- 
sists of two parts; and in fact performs 
a double office. It consists, first, of 
the defense of the defendant to the 
case imade by the bill; and, secondly, 
of the examination of defendant on 
oath, as to jthe facts charged in the 
bill, of which a discovery is sought, 
and to which interrogatories are usu- 
ally addressed. Johnson v, Mundy, 
123 Va. 730, 97 S. E. 664. 

When Answer May Pray for Affirma- 
tive Refief. — The general rule of chan- 
cery practice is that an answer to a 
bill tan only pray for dismissal of the 
bill, and not for affirmative relief on 
new matter presented by it, that be- 
ing ia proper subject for a cross bill; 
but, under our practice, there are cer- 
tain exceptions to this, outside of an- 
swers under § 35, Ch. 125, Code. II n 
such cases, relief may be given to the 
defendant on such ordinary answer 
against the plaintiff, but not against a 
co-defendant. To affect him, resort 
must be had to a cross bill, or an 
answer, under § 35, Ch. 125, in lieu 
of a cross bill. Freeman v, Egnor, 72 
W. Va- 830, 79 S. E. 824. See post, 
CROSS BILLS. 

An answer can not introduce foreign 
matter as ^ground for affirmative relief. 
Price V, Price, 68 W. Va. 389, 392, 69 
S. E. 892. 

Effect of Denial by Answer. — Barnes 
Code W. Va., p. 1119, ch. 125, § 59. 

B. NECESSITY FOR ANSWER. 
Where an amended bill to meet new 

matter introduced in the answer, not 
as a basis for affirmative relief, but 
defensive only and calling for a reply, 
relates only to certain items of debit 
and credit in an accounting to be had 
between the parties, and the case on 



its merits has been fully matured for 
hearing, it is unnecessary to await the 
answer of the defendant to the 
amended bill before adjudicating the 
principles of the cause and directing 
such accounting. Oay v. Gibson, 85 
W. Va. 226, 101 S. E. 365. 

IIL RIGHT AND TIME TO FILE. 

A. GENERAL RULE. 
1. In Virginia* 

When Defendant in Equity {May An- 
swer; Penalty for Delay. — A defendant 
in equity upon whom process has been 
executed shall file his answer or other 
defense in the court or in the clerk's 
office of the court in which the suit or 
proceeding '*ts pending within six 
months from the date of such service, 
unless after notice to the adverse party, 
and for good cause shown, the time be 
lessened by the court or additional 
time be given by the court, or the judge 
thereof in vacation, within which to file 
the same. After the lapse of such six 
months, or additional time, if any isuch 
be granted, no answer or other defense 
shall be received except for, good cause 
shown and upon payment :to the com- 
plainant of his costs up to that time, 
or such part thereof as the court or 
judge shall deem reasonable, and unless 
the defendant will undertake to file his 
answer within such time as the court 
or judge shall direct, and submit to 
such other terms as the court or judge 
shall direct, for the purpose of speed- 
ing the cause. Va. Code 1919, § 6122. 

This provision of the Code of 1919 
changed the rule embodied in § 3275 
of the Code of 1887, under which the 
defendant had the right to file an an- 
swer at any time before final decree. 
Collier v. Seward, 113 Va. 228, 74 S. 
E. 155, citing Bean v, Simmons, 9 
Gratt. (50 Va.) 389. 

Although it is true that under % 3275 
of the Code of 1904 a defendant might 



200 



Answers 



have been allowed, under certain re- 
strictions, to file his answer at any 
time before final decree, that did not 
affect the right of the plaintiff, by the 
proper proceeding, to have the court 
compel him to answer sooner. Johnson 
V, Mundy, 123 Va. 730, 97 S. E. 564. 

2. In West Virginia. 

Time within Which Answer May Be 

FUed— Barnes W. Va. Code, p. 1118, 
ch. 125, § 53. 

Defendant may file his answer at any 
time before final decree. Stoddard v. 
Jarrett, 7€ W, Va. 203, 85 S. E. 251; Ash 
V, Lynch, 72 W. Va. 238, 78 S. E. 365. 

A defendant has a right to file his 
answer at any time before final hear- 
ing, but he can not delay the hearing 
unless, by affidavit filed, good cause 
be shown therefor. Section 53, chapter 
125, Code (1906); Keck v, Allender, 37 
W. Va. 201, 16 -S. E. 520; Kimble v. 
Wotring, 48 W. Va. 412, 37 S. E. 606; 
Augir V. Warder, 68 W. Va. 752, 755, 
70 S. E. 719. 

Although a decree has been pro- 
nounced, signed and directed to be en- 
tered, an answer may be filed in the 
cause, if it has not been actually en- 
tered in the order book. Ash v. Lynch, 
72 W. Va. 238, 78 S. E. 365. 

That, in such case, the defendant 
prevented entry of the decree by tak- 
ing it and the papers in the cause from 
the clerk's office of the court, does not 
justify rejection of the answer or de- 
nial of leave to file it. Ash v. Lynch, 

72 W. Va. 238, 78 S. E. 365. 

B. AFTER FINAL DECREE. 

An answer, tendered after a final de- 
cree has been rendered upon bill taken 
for confessed, is properly rejected 
when not accompanied by affidavit 
showing good cause for delay. Mc- 
Donald V. McDonald Planing Mill Co., 

73 W. Va. 78, 79 S. E. 1081. See also, 
McLaughlin v, Sayers, 72 W. Va. 364, 
78 S. E. 355. 

After a final decree in a suit to ob- 
tain the removal of a guardian and the 
settlement of his accounts, the guardian 



filed a petition for rehearing (regarded 
by the court as a bill of review) on the 
ground that the commissioner in taking 
his account failed to allow him certain 
credits dependent upon extrinsic evi- 
dence. Held: That the bill of review of 
the guardian was in truth a belated 
answer sought to be filed after a final 
decree, and that this could not be done 
even under the Hberal practice per- 
mitted by § 3275 of the Code of 1904. 
Gills i\ Gills, 126 Va. 526, 101 S. E. 
900. 

An answer, filed after the term of 
court has ended at which an appeal- 
able decree was rendered, can not raise 
an issue upon the questions determined 
by such decree. Wright v, Pittman, 73 
W. Va. 81, 79 S. E. 1091. 

C. AFTER PLEA OR DEMURRER 
OVERRULED. 

Barnes W. Va. Code, p. 114, ch. 125, 
§ 30. 
Necessity for Rule to Answer. — On 

the overruling of a demurrer to the 
bill, if the defendant does not answer 
or waive his right to do so, a rule to 
answer must be given him before any 
decree affording the plaintiff relief can 
be taken. Ross v. Ross, 72 W. Va. 640, 
78 S. E.*789. 

**Yet the rule need not be served, and 
amounts only to an order that the de- 
fendant answer within a certain time, 
which may be regulated according to 
the circumstances of the particular case. 
^o ;the statute has long been interpreted. 
From our examination into the origin 
and history of this statute we doubt 
whether it has always been rightly un- 
derstood and interpreted. It would 
seem that it should not apply in favor 
of a defendant who, as appellant here, 
is in default by a bill taken for con- 
fessed against him at rules. Brent v, 
Washington, 18 Gratt. (59 Va.) 526; 
Reynolds v. Bank. 6 Gratt. (47 Va.) 
174. Such a defendant has already 
neglected a rule to plead. Why should 
another be given him? But no distinc- 
ition has ever been made in our cases. 



Answers 



201 



They apply the statute to any defend- 
ant, whether one in default or not." 
Ross V, Ross, 72 W. Va. 640, 642, 78 
S. EX 789, 

Right to Answer at Any Time before 
Final Decree Not Precluded. — Section 
30 of ch. 125 of the Code, ser. § 4784. 
VVaggy V. Waggy, 77 W. Va. 144, 87 
S E. 178. See ante, "In West Vir- 
ginia," III. A, 2. 

Wa- filing AT SPECIAL TERM. 
Reliance upon a local rule of prac- 
tice relieving from duty to prepare 
chancer.y causes for submission at 
special terms constitutes no 'excuse for 
failure to answer within the period pre- 
scribed by a rule requiring the defend- 
ant to do so, and such default confers 
upon the plaintiff right to a decree at 
a special t^rm, if his bill and evidence 
arc sufficient. Waggy v. Waggy, 77 
W. Va. 144, 87 S. E. 178. 

Dy2. ANSWER TO AMENDED BILL. 
Time Allowed to Answer Amended 
Bill.—Barnes Code W. Va., p. 1112, ch. 
125, § 12. 

D^. WHEN A CROSS BILL IS 
FILED. 
Va. Code 1919, § 6097. 

E. EFFECT OF J'AILURE TO FILE 

OR IRREGULARITY IN FILING. 

Va. Code 1919, § 6120. Barnes Code 

W. Va., pp. 1114, 1116, ch. 125, §§ 30, 44. 

IV. FORMAL REQUISITES, 

C. OATH. 

1. General Rule. 

a. In Virginia. 

Va. Code 1919, § 6128. 

In the absence of statute, or rule of 
court, or express leave by order of 
court, answers in all suits in equity 
must be under oath, except the an- 
swers of corporations, infants, com- 
mittees of persons of unsound mind, 
and guardians ad litem, which need not 
be under oath, unless required by stat- 
ute in some statutory proceedings. 
Johnson v. Mundy, 123 Va. 730, 758, 97 
S. E. 564. 



Prior to 1884 all answers were under 
cath, and in 1884 the statute was passed 
modifying the effect of answers as evi- 
dence in chancery suits by allowing the 
complainant to waive an answer under 
cath. Vashon v, Barrett, 105 Va. 490> 
54 S. E. 705. See post, "Waiver of," 

IV, IC, 5; "Effect of Waiving Oath to 
Answer," XIII, D, 3. 

b. In West Virginia. 

Barnes Code W. Va., p. 1115, ch. 125, 
§ 38. 
3^. Before Whom Taken. 

Answer May Be Sworn to before 
Clerk of Court.— Va. Code 1919, § 6129. 

4. Sufficiency of. 

Affidavit of Belief Sufficient.— Va. 

Code 1919, § 6129. 

5. Waiver of. 

Effect of Waiver of Answer under 

Oath.— Va. Code 1919, § 6128. 

This statute modifies the effect of 
answers as evidence in chancery suits 
by allowing the complainant to waive 
an answer under oath. Va^.shon v. 
Barrett, 105 Va. 490, 54 S. E. 705. See 
post, "Effect of Waiving Oath to 
Answer," XIII. D, 3. 

Mode of Waiver.— ^It is suggested, if 
it is desired |to waive an answer under 
oath, that, instead of the form in com- 
mon use, the bill should simply pray 
that the desired parties "be made 'de- 
fendants to this bill, and, waiving an 
answer under oath, that," etc. Blanch- 
ard z\ Dominion Nat. Bank, 125 Va. 
586, 100 S. E. 463. 

V. SUFFICIENCY OF ANSWER. 

A. MUST BE FULL. 

1. General Rule. 

"As Mr. Hogg says, in his valuable 
work on Equity Pleading, in reference 
to an answer: 'Its real purpose is to 
apprise the plaintiff of the extent and 
nature of the defense offered to the 
bill, and so infexible is this principle 
that a defendant can avail himself of 
no matter of defense not stated in the 
answer, even though it is established 
by the evidence. I Hogg's Eq. Pr.," § 



202 



Answers 



397, p. 471. Johnson v, Mundy, 123 Va. 
730, 748, 97 S. E. 564. 

The answer, as a pleading, may tra- 
verse each and all of the material al- 
legations of the bill directly, distinctly, 
categorically and unequivocal^^ but 
that is not enough, if the plaintiff in- 
sists upon a full answer. It must go 
further and state affirmatively the facts 
constituting the defense of the re- 
spondent, whether that defense is in 
conflict, in whole or in part, with the 
allegations of fact in the bill, or is in 
confession and avoidance. Johnson v. 
Mundy, 123 Va. 730, 97 S. E. 564. 

S. Must Contain ^>ecific, Direct De- 
maL 

General Denial in Absence of ^;>ecific 
Ezceptioni. — A general denial in an 
answer of such allegations of a bill 
as are not admitted suffices, in the ab- 
sence of specific exceptions to the de- 
nial on account of its generality, point- 
ing out the particular allegations as to 
which admissions or denials are in- 
sisted tfpon. Huntington, etc., Co. v. 
Harvey Coal, etc., Co., 73 |W. Va. 527, 
80 S. E. 871. 

Though the answer in this case was 
somewhat informal, inartistic and gen- 
eral, yet in the absence of an excep- 
tion to it for generality and a demand 
for a more specific denial, it was held 
to be sufficient. George v. Crim, 66 
W. Va. 421, 429, 66 S. E. 526. 

The answ^ of an assignee to a bill, 
attacking an assignment of a fund, as 
having been fraudulently made, must 
deny notice of fraudulent intent of the 
assignor, as well as fraudulent intent 
on the part of the assignee. Failure 
to deny it is equivalent, in legal effect, 
to an admission of the truth of the al- 
legation of notice. Dent v. Pickens, 59 
W. Va. 274, 53 S. E. 154. See post. 
^'Effect of Not Answering Particular 
Allegations," XIII, N, 3. 

The answer of an assignee, respond- 
ing to a bill charging fraud in the as- 
signment, specifically denies the fraud- 
ulent intent imputed to him by the al- 



legations of the bill, says nothing as 
to the fraudulent intent imputed to 
his assignor, is silent as to the allega- 
tion of notice of the fraud of the latter, 
and denies generally each and every 
charge or intimation of fraud charged 
against respondent in plaintiff's orig- 
inal and amended bills; and there is no 
exception to said answer. Held, the 
general denial is insufficient to negative 
fraudulent intent of the assignor and 
notice thereof to the assignee. Dent 
V, Pickens, 59 W. Va. 274, 275, 53 S. 
E. 154. 

The answer in this case is argumen- 
tative and evasive, not making a full 
and square denial of the plaintiff's 
claim. Grant v. Cumberland Valley 
Cement Co., 58 W. Va. 162, 172, 52 S. 
E. 36. 

9^. Answer As to Defendant's ''Re- 
membrance, Information and Be- 
lief May Be Required. 

The plaintiff is entitled to insist 
upon an answer, not only according to 
the "knowledge" of the defendant, but 
also "as to his remembrance, informa- 
tion and belief.'' Johnson v. Mundy, 
123 Va. 730, 97 S. E. 564. 

9^. Denial of Knowledge of Facts 
Not Denied Sufficient. 

"If the defendant answers, and an- 
swers only a part of the allegations 
of the bill, if he denies knowledge as 
to the facts not denied, it is sufficient, ' 
under the practice in Virginia, to put 
such facts in issue. 1 Hogg's Eq. Pr. 
§ 404, p. 482." Johnson v, Mundy, 123 
Va. 730, 748, 97 S. E. 564. 

3. Answeriiig Interrogatories. 

In the instant case where complain- 
ant waived an answer under oath, the 
defendants having answered fully all 
of the allegations of the bill, except 
the interrogatory, they could properly 
refrain from answering further, and 
this notwithstanding the general rule 
that having answered defendant must 
answer fully. Johnson v. Mundy, 123 
Va. 730, 97 S. E. 564. 



Answers 



203 



SH- Where Second Amended Bill Adds 
No New Matter. 

Where a second amended bill in a 
case adds no new matter, an answer 
filed to the original and first amended 
bills puts in issue all matters of fact 
involved in the cause. Baker t/. Berry 
Hill Mineral Springs Co., 112 Va. 280, 
71 S. E. 626. 

1 What Need Not Be Answered, 
a. Immaterial Matter. 

An allegation in a bill, which, by 
reason of its vagueness and uncer- 
tainty, fails to show materiality of its 
subject matter, need not be answered. 
Burkheimer v. National Mut, etc., 
Ass'n, 59 W. Va. 209, 210, 53 S. E. 372. 

c Statement of Facts Constituting 
Part of Plaintiff's Case Not Re- 
quired. 

An answer not under oath is not 
free from all exception for insuffi- 
ciency. But the requirements of 
modern equity procedure as to affirma- 
tive statements of defense in an an- 
swer, when considered merely as a 
pleading, does not lead to the result 
of allowing a plaintiff to compel a re- 
spondent to go beyond traversing each 
and all of the material allegations of 
the bill and giving an affirmative state- 
ment of facts constituting his own de- 
fense, and compel him to also add a 
statement of facts not a part of his 
defense, but a part of the plaintiff's 
case, and which the plaintiff needs and 
seeks as evidence to support his case. 
Johnson v. Mundy, 123 Va. 730, 97 
S. E. 564. 

m. DENIAL OF CONTRACT BY 
STATEMENT OF IT WITH 
CONDITIONS OR LIMITA- 
TIONS NOT MENTIONED IN 
BILL. 
An answer denying the contract al- 
leged by the bill, not in affirmative or 
negative terms, but by statement of 
the same contract with conditions or 
limitations not mentioned in the bill, 
is defensive and sufficient, if the truth 



of its averments would preclude relief 
sought by the bill. Ash v. Lynch, 72 
W. Va. 238, 78 S. E. 365. 

Such an answer can not be rejected 
for mere omission of admission or de- 
nial of other portions of the bill not 
conclusive of the case. Ash v. Lyneh. 
7 W. Va. 238, 78 S. E. 365. 

VI. SPECIAL DEFENSES WHICH 
MAY BE SET UP BY ANSWER. 

For a full treatment of this subject, 
see the specific titles in this work. 

VIIH. EFFECT OF ANSWER. 
Plea Overruled by Answer. — " *If an 
answer commences as an answer to the 
whole bill, it will overrule a plea to 
any part of the bill, although the de- 
fendant did not in fact answer that 
part of the bill which is covered by 
plea.* So says a late and admirable 
book. Fletcher, Eq. PI. & Pr., § 247." 
McDermitt v, Newman, 64 W. Va. 195, 
202, 61 S. E. 300. 

VIIL ANSWERS BY PARTIES IN 
SPECIAL INSTANCES. 

Infants.— See post, INFANTS. 

Coit>oration8.— See post, CORPO- 
RATIONS. 

IX. OBJECTIONS AND EXCEP- 
TIONS TO ANSWER. 

A. IN GENERAL. 

Elffect of Objection to Answer Pre- 
senting No Defense. — Where an an- 
swer which presents no defense is of- 
fered, the court should, upon objection, 
refuse to permit it to be filed. Gauley 
Coal Land Ass'n v. Spies, 61 W. Va. 
19, 55 S. E. 903. 

C. EXCEPTIONS. 
1. Office and Object 

a. In Virginia. 

Exceptions for Insufficiency Abol- 
ished^Motion to Strike Out Sub- 
stituted.— Va. Code 1919, § 6123. 

An exception to the sufficiency of an 
answer is tantamount to an averment 
that the answer, if true, constitutes no 
defense to the complainant's demand. 



204 



Answers 



If the answer states a good defense, 
the exception should be overruled. 
Keys Planing Mill Co. v. Kirkbridge, 
114 Va. 58, 75 S. E. 778, 

b. In West Virginia. 

Strictly speaking the office of an ex- 
ception to answer in equity is to 
specifically point out some particular 
allegation of the bill which is not re- 
sponded to, or to which a better or 
more specific answer is required, or to 
rid the answer, when desired, of some 
scandalous or impertinent matter. 
Lawrence v, Montgomery Gas Co., 84 
W. Va. 382, 99 S. E. 496. 

But in West Virginia by a loose 
practice indulged, the sufficiency of an 
answer 'as a whole or in part may be 
challenged by an objection or excep- 
tion thereto; and perhaps, on specific 
objection to immaterial matter in the 
answer, such matter may be eliminated, 
and the issues thereby limited to the 
material facts put in issue by the bill 
and answer. Lawrence v, Mont- 
gomery Gas Co., 84 W. Va. 382, 99 S. 
E. 496. 

The practice in some of our federal 
courts to treat a demurrer to an an- 
swer, or general exceptions thereto 
which are equivalent to a demurrer, as 
a motion to set the cause down for 
hearing on bill and answer, and a 
waiver of the right to contest the facts 
alleged, has not been followed in the 
courts of this state. And where such 
general exceptions are interposed to 
answer and one or more of the allega- 
tions thereof may be good or sufficient 
to put in issue some material fact al- 
leged in the bill, the decree below over- 
ruling such exceptions as a whole will 
not be reversed on appeal. Lawrence 
7'. Montgomery Gas Co., 84 W. Va. 
382. 99 S. E. 496. 

2. Grounds of. 

When Plaintiff Can Not Except Be- 
cause of Failure to Make Discovery — 
Answer Not under Oath. — If a plain- 
tiff, in a bill for equitable relief (which 
the court has jurisdiction to give in- 



dependent of discovery), prays for cer- 
tain disclosures of fact by the defend- 
ants, in aid of such equitable relief, 
but waives answer under oath, the 
plaintiff can not except to the answer 
as insufficient because the respondents, 
although answering fully as to all 
other portions of the bill, fail to make 
the discovery asked for. In the ab- 
sence of statute, or some rule of court 
authorizing it, there can be no dis- 
covery compelled by a bill waiving an- 
swer under oath, and § 3281 of the 
Code of 1904 (Code 1919, § 6128) has 
not changed this established rule of 
procedure in chancery. Johnson v. 
Mundy, 123 Va. 730, 97 S. E. 564. Sec 
post, DISCOVERY. 

45^. Admissions by. 

Exceptions to an answer which sets 
up affirmative matter in bar, being 
analogous to a demurrer to a bill or 
plea, admit the truth of the allegations 
excepted to. Caswell v. Caswell, 84 
W. Va. 575, 100 S. E. 482. 

Exceptions filed to an answer in 
chancery have the effect of a demurrer 
to other pleadings, and admit as true 
all the statements and allegations of 
the answer which are relevant and 
properly pleaded. Norfolk r. Norfolk 
County Water Co., 113 Va. 303, 74 S. 
E. 226. 

"The exception is tanamount to say- 
ing that the averment in the answer, 
if true, constitutes no defense to the 
bill." Caswell v. Caswell, 84 W. Va.. 
575. 100 S. E. 482, 485. 
5. Disposition of. 

Barnes Code W. Va.. p. 1118, ch. 
125, § 54. 

X. DISCOVERY AND COMPELL- 
ING ANSWER. 

See post. DISCOVERY. 

XL AMENDMENT OF ANSWERS. 
See ante, AMENDMENTS. 
XIII. ANSWER AS EVIDENCE. 

A. GENERAL RULE. 

Where "no replication is made, and 
no proof taken * * * the allega- 



Answers 



205 



tions of the answer must be taken as 
true. Wilt v, Huffman, 46 W. Va. 473, 
33 S. E. 279, and Bierne v. Ray, 37 
W. Va. 571, 16 S. E. 804." Brown v. 
Click, 65 W. Va. 459, 460, 64 S. E. 613. 

In the absence of a replication, the 
answer of a defendant in an equity 
suit is taken as true for the purposes 
of the case, if the defendant has not 
taken depositions as if one had been 
filed and thus submitted the case upon 
its merits. McCoy v. McCoy, 74 \V. 
Va. 64, 81 S. E. 562. 

An answer to a bill for specific per- 
formance of a contract of sale of land, 
founded upon a written contract, ex- 
hibited therewith, and an alleged ver* 
bal contract, so far performed as to 
take it out of the statute of frauds, 
denying the sufficiency of the written 
contract on the ground of uncertainty, 
and also the existence of any contract, 
either written or verbal, and also the 
alleged acts of part performance, casts 
upon the plaintiff the burden of prov- 
ing a written contract, good under the 
statute of frauds, or part performance 
of a verbal contract, sufficient to take 
it out of said statute. Smith v. Peter- 
son, 71 W. Va. 364, 76 S. W. 804. ' 

B. RESPONSIVENESS. 

An answer responsive to a bill of 
discovery must be taken as true, un- 
less overcome by other evidence. An- 
derson V. Union Bank, 117 Va. 1, 83 
S. E. 1080. 

D. LIMITATIONS AND EXCEP- 
TIONS. 
1. Answer Setting up Affirmative 

Matter, 
a. In Virginia. 

"It is well settled that where the 
answer is not responsive to the bill, or 
sets up affirmative allegations of new 
matter in avoidance of the complain- 
ant's demand, and is replied to, the 
answer is of no avail as evidence in 
respect to such allegations, and the re- 
spondent is as much bound to establish 
the allegations by independent testi- 
mony as the complainant is to sustain 



his bill. * ♦ ♦ 1 Daniel's Chy. Pr., 
844, note; 1 Barton's Chy. Pr., 419." 
Wingfield v. McGhee, 112 Va. 644, 647. 
7^ S. E. 154. 

b. In West Virginia. 

Admission by Failure to Reply to 
Allegations of Answer. — Every mate- 
rial allegation of new matter in the 
answer constituting a claim for affirma- 
tive relief, not controverted by a special 
reply in writing, shall for the purposes 
of the suit, be taken as true, and no 
proof thereof shall be required. Barnes 
Code W. Va., p. 1115, ch. 125, § 36. 

3. Effect of Waiving Oath to Answer. 

Va. Code 1919, § 6128. 

Where an answer under oath has been 
waived, the answer affords no evidence 
in favor of defendant, and amounts to 
nothing more than a traverse, serving 
to compel the plaintiff to prove the 
material allegations of his bill. 
Hutcheson v. Savings Bank, 129 Va. 
281, 105 S. E. 677. 

F. EVIDENCE NECESSARY TO 
OVERCOME ANSWER. 

1. General Rule. 

If a bill calls for an answer under 
oath from the defendant, such answer, 
when made, in so far as it is responsive 
to the bill, * is admissible in favor of 
the defendant, and is conclusive until 
it is overcome by two witnesses, or by 
one witness and corroborating circum- 
stances. Shenandoah Land, etc.. Coal 
Co. V, Clarke, 106 Va. 100, 55 S. E. 561. 

An answer under oath, denying sub- 
stantially all the allegations of the bill; 
(answer under oath not having been 
waived) furnishes evidence for the de- 
fendant and will be taken as true un- 
less overcome by the testimony of two 
witnesses, or of one witness and cor- 
roborating circumstances, or by docu- 
mentary evidence. Becker v. Johnson, 
111 Va. 245, 68 S. E. 986; Haynor v. 
Haynor, 112 Va. 123, 125, 70 S. E. 531. 

There was a general waiver of an 
answer under oath in an amended bill 
against a corporation and other de- 



206 



Answers 



fendants, but there was also a subse- 
quent special prayer therein for a dis- 
covery under oath from the corpora- 
tion as to a certain fact. The dis- 
closure in the corporation's answer was 
made in strict response to the prayer, 
and the answer was sworn to by the 
corporation's president, in effect stat- 
ing as facts such matters therein as 
came within his own knowledge. It 
appeared from the record that the pres- 
ident necessarily had personal knowl- 
edge of the facts as to which the dis- 
covery was demanded. Held: That 
the answer of the corporation upon that 
point was evidence against the com- 
plainant, only to be overcome by the 
evidence of two witnesses, or of one 
witness and corroborating trircum- 
stances. Carle v, Corhan, 127 Va. 223, 
103 S. E. 699. 

G. AS EVIDENCE AGAINST AND 
FOR CODEFENDANTS. 

1, Against Codefendant. 

"The answer of one defendant, as to 
its statement of facts, is binding on his 
codefendant where they have a joint 
interest as stated in Dickinson v, 
Clarke, 5 W. Va. 280, pt. 3, and 10 
Cyc. 981, and 4 Elliot on Ev., § 3206, 
and 1 Am. & Eng. Ency. L. (2d Ed.), 
703, 720." Hudkins v. Crim, 64 W. Va. 
225, 235, 61 S. E. 166. 

The answer of an adult codefendant 
has no effect against an infant. Holder- 
by V. Hagan, 57 W. Va. 341, 346, 60 
S. E. 437. See post, "Answer of In- 
fant Defendant," XIII, H. 

9. For Codefendant. 

a. General Rule. 

"The general rule, certainly in Vir- 
ginia, is that the separate answer of 
one defendant can not be used as evi- 
dence for a codefendant. Frank v. 
Lilienfeld, 33 Gratt. (74 Va.) 377, 380; 
Lile's Eq. PI. & Pr., § 192; 1 Hogg's 
Eq. Proc, § 447. Carle r. Corhan, 127 
Va. 223, 230, 103 S. E. 699. 

In a suit brought to enforce the 
specific performance of a contract, 



where the party with whom the con- 
tract is alleged to have been made, and 
against whose heirs the contract is 
sought to be enforced, is dead; and 
where the administrator and heirs of 
the decedent are made parties defend- 
ant, an answer filed by the adminis- 
trator, contesting the right of plain- 
tiff to have specific performance, and 
denying the allegations of the bill, 
does not enure to the benefit of his 
codefendants. Ferrell r. Camden, 57 
W. Va. 401, 50 S. E. 733. 

b. Exceptions to 'Rule. 

But, as said by Judge Burks in the 
case of Frank v, Lilienfeld, 33 Gratt 
(74 Va.) 377, there are exceptions to 
the rule. Carle r. Corhan, 127 Va. 
223, 230, 103 S. E. 699. 

Answer of Corporation as Evidence 
for Co-Defendants. — The answer of the 
corporation in the instant case falls 
within one of the exceptions to the 
rule that an answer of one defendant is 
not evidence for a co-defendant. The 
respondent corporation, as to this 
particular matter, stood in a relation- 
ship of privity with its co-defendants; 
and, moreover, the very form of the 
bill and its special prayer for discovery 
called for an answer, which, if adverse 
to complainant, necessarily established 
as a fact the very defense upon which 
the corporation's co-defendants relied. 
Carle v. Corhan, 127 Va. 223, 103 S. 
E. 699. 

H. ANSWER OF INFANT DE- 
FENDANT. 
"The answer of an infant defendant 
by his guardian is not evidence against 
him; material allegations in the bill 
must be proved by other means. It 
may, however, be evidence in his 
favor." Holderby v, Hagan, 57 W. Va. 
341, 346, 50 S. E. 437. See post. "Ad- 
missions of an Infant or His Codefend- 
ant," XIII, N, 5. 

N. ADMISSIONS BY ANSWER. 

1. Express Admissions. 
As Evidence in a Different Cause. 



Answers 



207 



—"An admission in an answer may be 
evidence in a wholly different cause. 
Z Wigmore on Evidence, § 1064; 11 
Amer. & Eng. Enc. of Law, 449." 
Morrison v. Leach, 75 W. Va. 468, 84 
S. E. 177, 179. 

On the hearing of an issue in chan- 
cery between co-defendants to a 
cause, made by pleadings allowed sub- 
sequent to a final determination of the 
main issues, the answer of either of 
the parties on the former issues may 
be read as an admission against him. 
Morrison v. Leach, 75 W. Va. 468, 84 
S. E. 177. 

Axlmission of Conunon Source of 
Title. — In a suit to remove cloud upon 
plaintiff's title and to enjoin the cut- 
ting of timber on his land, admission 
in defendant's answer of a common 
source of title, though not alleged in 
the bill, will excuse plaintiff on the 
trial from proof of title back of the 
common source so admitted. Hal- 
stead V, Aliff, 78 W. Va. 480, 89 S. E. 
721. 

Such common .source of title not be- 
ing the foundation for the relief 
prayed for, but only a fact provable 
under the allegation of good title in 
defendant, and possession, the prop- 
osition stated in the preceding para- 
graph does not contravene the rule that 
admissions in an answer to a bill in 
chancery can not lay the foundation for 
relief under any specific head of 
equity, unless substantially set forth in 
the bill. Halstead v. Aliff, 78 W. Va. 
480, 89 S. E. 721. 

Admission that Money Was Paid Out 
and Not Retained. — Where it is alleged 
that a party to a partnership settle- 
ment, having the custody of social 
property and funds, authority to in- 
cur and pay expenses and make, and 
cause to be made, entries of such ex- 
penses in the firm books, as charges 
against its assets, made entries therein 
of large charges, as for expenses paid, 
of money which had not been paid 
and for payment of which there was 
no obligation, rights or basis and so 



procured a settlement leaving such 
sums of money in his own hands as 
secret, wrongful and clandestine profits, 
an answer, admitting the existence of 
the charges on the books, not denying 
the making thereof by the defendant, 
or at his instance, and averring pay- 
ment of the money represented by them 
to a person other than any of those 
named in the entries, for the persons 
so named, is a judicial admission that 
such sums were paid out and not re- 
tained, and is conclusive upon the de- 
fendant in all of its tendencies, bear- 
ings and aspects, wherefore evidence 
of rightful retention thereof is neither 
admissible nor probative. Teter v, 
Moore, 80 W. Va. 443, 93 S. E. 342. 

Admission that .Election Was Valid. 
— A defendant who has set up the de- 
fense, by answer, that an election was 
valid, can not subsequently claim that 
it was invalid and claim a new election, 
although the plaintiff had alleged the 
invalidity of the election in his com- 
plaint, but had subsequently abandoned 
that position. Board v. Spilman, 113 
Va. 391, 74 S. E. 151. 

The (answer of vendees in (gamisb- 
ment proceedings admitting a balance 
of indebtedness under the contract of 
sale to the vendor is not inconsistent 
with vendees' claim of title to the 
lumber itself under the contract of sale 
or their right to charge the vendor 
with any advances or loans the vendees 
may have made to him under the con- 
tract of sale or otherwise. Ellis, Etc., 
Lumber Co. v, Hubbard, 123 Va. 481, 
96 S. E. 754. 

2. Admissions by Implication. 

Proposal in Answer Not Amounting 
to jAdmission Entitling Plaintiffs to 
Specific Performance. — The mere pro- 
posal of a defendant in his answer to 
release or surrender a part of the land 
held under a lease from plaintiffs, in a 
suit to cancel the entire lease, where 
the answer denies the material facts 
alleged in plaintiffs' bill does not 
amount to admission of the facts en- 



208 



Answers 



titling plaintiffs to specific performance 
of such proposal. Hart v. Kanawha 
Oil Co.. 79 W. Va. 161. 90 S. E. 604. 

3. Effect of Not Answering Particular 
Allegations. 

a. In Virginia. 

Allegations of a bill not denied or 
noticed in the answer are not to be 
taken as admitted by the defendant, 
but, if material to the plaintiff's case, 
must be proved by independent testi- 
mony. If the plaintiff desires to insist 
upon a response to such allegations he 
should except to the answer for in- 
sufficiency. Wright V. Wright, 124 Va. 
114, 97 S. E. 358. 

This rule, however, is subject to the 
qualification that on a motion to dis- 
solve an injunction, the allegations not 
denied or admitted in the answer must 
be taken as true. Wright v. Wright. 
124 Va. 114. 117. 97 S. E. 358, quotes 
and reaffirms the rule laid down in Dan- 
gerfield v. Claiborne, 2 Hen. & M. 17. 
See ANSWERS, vol. 1, p. 414. 

b. In West Virginia. 

See post, "Admissions of an Infant 
or His Codefendant," XIII, N, 5. 

Barnes Code W. Va., p. 1115, ch. 
125, § 36. 

"All allegations (of the bill) not de- 
nied are taken as true. Code, chapter 
125. § 36; Gardner r. Landcraft. 6 W. 
Va. 36; Dickinson r. Railroad Co., 
7 W. Va. 390; Warren r. Symc, 7 W. 
Va. 474; Burlew v. Quarrier, 16 W. 
Va. 108." Grant v. Cumberland Valley 
Cement Co., 58 W. Va. 162, 172, 52 S. 
E. 36. 

Assignee's Failure to Deny Notice 
of Fraudulent Intent of Assignor. — In 
the answer of an assignee to a bill, 
attacking an assignment of a fund, as 
having been fraudulently made, failure 
to deny notice of fraudulent intent of 
the assignor, is equivalent, in legal ef- 
fect, to an admission of the truth ot the 
allegation of notice. Dent v. Pickens, 
59 W. Va. 274, 53 S. E. 154. 



What Amounts to a Denial of Allega- 
tions of Billw — If the protestations 
of want of knowledge of the truth of the 
allegations of the bill is accompained by 
a general denial, it devolves upon the 
plaintiff to prove the facts, but a mere 
averment of want of personal knowl- 
edge is not a denial of the allegations. 
"A general denial of all material allega- 
tions will be sufficient, if not expected to. 
Richardson v, Donehoo, 16 W. Va. 685; 
Warran v, Syme, 7 W. Va. 474; Flem- 
ing V. Holt. 12 W. Va. 143, 160. This 
liberality in favor of the respondent, 
however, does not go so far as to enable 
him to put the complainant to the proof 
of an allegation without denying it all. 
Dent V. Pickens, 59 W. Va. 274, 53 S. E. 
154." Hogan V. Piggott, 60 W. Va. 541, 
544, 56 S. E. 189. 

Answer Not Amounting to Denial of 
Allegations of Billw — Where a bill 
charges the making, execution and de- 
livery by decedent to plaintiff of the 
note sued on, nonpayment of the princi- 
pal and interest thereof, and that the 
same remains wholly due and unpaid, 
the answer of defendants that said alleg- 
ation may be true, though not admitted 
by them to be true, and that it may also 
be true as alleged that no part of said 
note or interest has been paid, but calling 
for full proof, does not within the 
meaning of § 3856, Code 1906 (Baines 
Code, p. 1115, ch. 125, § 36), amount 
to a denial calling for further proof 
by plaintiff of the allegations of his 
bill. Shurtleff v. Right. 66 W. Va. 582, 
66 S. E. 719. 

An answer to a bill by a purchaser 
in a suit to cancel a d«ed of trust improp- 
erly admitted to record, as being a cloud 
upon the title, which, for denial of the 
allegation of payment of a valuable 
consideration says only that "Re- 
spondent is further informed that as 
a matter of fact" the plaintiff "paid 
nothing whatever by way of cash" for 
the property, does not amount to a 
denial thereof, and, for the purposes 
of the suit, the allegation must be 



Answers 



209 



taken as true. Ihrig v. Ihrig. 78 W. 
Va. 360, 88 S. E. 1010. 

4. Effect of Not Answering at All. 

When a bill specifically assails rights 
claimed by a defendant * who is sum- 
moned or enters an appearance in the 
suit recognizing the jurisdiction of the 
court, he must make direct defense by 
plea or answer if he would prevent d-e- 
cree against him on the bill taken for 
confessed. Katzenstein v- Prager, 67 
W. Va. 343. 67 S. E. 792. 

In suit for a settlement and distri- 
bution of the assets of an insolvent firm, 
though the bill makes no allegations 
affecting the claim of a creditor who is 
made defendant and appears thereto, if 
he does not in some way present his 
claim for adjudication, or does not meet 
the bill by plea or answer, a decree in 
the cause will be one upon the bill taken 
for confessed as to him. Katzenstein 
V. Prager, 67 W. Va. 343, 67 S. E. 792, 

A mere suggestion to the court by a 
defendant that his rights are involved in 
another pending cause will not alone 
suffice to prevent decree against him 
upon the bill taken for confessed. If he 
would rely upon the pendency of the 
other cause as a defense to the bill, he 
must plead it in such a way as to show 
that it is a bar, or that the other cause 
has priority of jurisdiction. Katzen- 
stein V. Prager, 67 W. Va. 343, 67 S. 
E. 792. 

5. Admissions of an Infant or His Co- 

defendant. 

"From the authorities, uniformly, it is 
held that not even the admissions of 
the infant in his answer can be taken 
against him, but the plaintiff is re- 
quired to prove each material allegation 
of his bill with the same certainty and 
clearness as would be required of him if 
an answer had been filed denying posi- 
tively each allegation, and, a fortiori, the 



admissions in the answer of a codefend- 
ant cannot bind him, although their in- 
terests may be joint." Hold^rby v, 
Hagan, 57 W. Va. 341, 346, 50 S. E. 437. 

"Section 36, ch. 125, Code, authorizing 
averments of the bill to be taken for con- 
fessed if they are not denied by answer, 
is held not to apply to infants, for the 
reason that they are not competent to 
make admissions, nor are their guardians 
ad litem permitted to bind them by ad- 
missions in the pleadings. So that, so 
far as averments in a bill relate to the 
rights, of an infant defendant, they 
must be proven in the same man- 
ner as if they had been denied 
by answer. Laidley v. Kline, 8 
W. Va. 218; Crotty v. Eagle, 
35 W. Va. 143, 13 S. E. 59; and Glade 
Coal Min. Co. v. Harris, 65 W. Va. 152, 
63 S. E. 873;" Harrison v. Harman, 80 
W. Va. 68, 73, 92 S. E. 460. 

Admissions in the answers of mother 
and father of infant defendants, to a bill 
of complaint against them and others, 
are not binding on such infant de- 
fendants, and can not be read against 
them on final hearing of the cause. 
Glad-e Coal Min. Co. v. Harris, 65 W. 
Va. 152, 63 S. E. 873. 

6. Whole Answer Must Be Taken To- 
gether and Explanations Con- 
sidered. 

Where it is sought to charge a defend- 
ant by reason of admissions made in 
his answer to a bill, the whole answer 
upon that question, if used at all, must 
be used and taken together, and explana- 
tions given must be used in connection 
with the admissions made; but if an- 
swer under oath is waived, and the facts 
admitted are clearly proved, independent 
of admissions in the answer, the defend- 
ant is not entitled to the benefit of quali- 
fying explanations contained in his 
answer. Reager v. Chappelear, 104 Va. 
14, 51 S. E. 170. 



ANTEDATING.— As to antedating insurance policy, see post, INSUR- 
ANCE; LIFE INSURANCE. 



—14 



ANTE-NUPTIAL CONTRACTS AND SALES.— See post, MARRIAGE 
CONTRACTS AND SETTLEMENTS. 

ANTI-TRUST LAW.— Sec post, MONOPOLIES AND CORPORATE 
TRUSTS. 

ANY.— See post, FOR; OTHER— OTHERS. 

■ 

ANY ACTION.— See Smith v. Northern Neck, etc., Ass'n, 112 Va. 192, 195, 
70 S. E. 482, citing Danville v. Pace, 66 Va. (25 Gratt.) 1, 27. 

ANY AND ALL LICENSES.— See Kelley v. Bowman. 68 W. Va. 49, 56, 69 
S. E. 456. 

ANY CITY, etc.— St. Marys v. Woods. 67 W. Va. 110, 113, 67 S. E. 176. 
See also post, MUNICIPAL CORPORATIONS. 

ANY CLAIM.— See post, COUNTIES. 

ANY CONTRACT.— See Coal, etc., R. Co. v. Conley, 67 W. Va. 129, 164, 67 
S. E. 613. 

ANY DEVISE.— See Kent v. Kent, 106 Va. 199, 55 S. E. 564. See also, post, 
WILLS. 

ANY DISTRICT.— See Townsend v. Board, 68 W. Va. 40, 44, 69 S. E. 378. 
See also, post, SCHOOLS. 

ANY LAND.— See White v. Romney, 69 W. Va. 606, 608, 73 S. E, 323. Sec 
also, post, EMINENT DOMAIN. 

ANY MEANS.— See post, WOUND. 

ANY OTHER ROAD.— In Ray v, Chesapeake, etc., R. Co., 57 W. Va. 333, 
50 S. E. 413, the court in construing a statute requiring a bell to be rung or a 
steam whistle to be whistled "where the railroad crosses any public street or 
highway" quotes Thomp. Com. on Negligence as follows: *'The term any other 
road in such a statute has been construed as referring to public highways only, 
and not to private crossings." See post, CROSSINGS. 

ANY PERSON.— See Norman v. Virginia-Pocahontas Coal Co., 68 W. Va. 
405, 417, 69 S. E. 857. See also, post, MASTER AND SERVANT. 

ANY POLICY.— See Smith v. Northern Neck, etc., Ass'n, 112 Va. 192, 196, 
70 S. E. 482. Citing Danville v. Pace, 66 Va. (25 Gratt.) 1. See also, post, IN- 
SURANCE. 

ANY POWER.— See post, EXERCISE OR ATTEMPT TO EXERCISE 
ANY POWER. 

ANY QUESTION.— See post, QUESTION. 

ANY SEA-GOING SHIP.— See Coal, etc., R. Co. v, Conley, 67 W. Va. 129, 
165, 67 S. E. 613. 

ANY TIME.— See post, AT. 

A PART OF.— See post, UNDER. 

APPARATUS.— See Virginia Lumber & Extract Co. v. O. D. McHenry 
Lumber Co., 94 S. E. 173, 122 Va. 111. 

School Apparatus. — Barnes Code, ch. 45, § 161, provides "apparatus" 
shall mean maps, charts, globes, arithmetical blocks, rules, pointers, dictionaries 
and atlases. 

APPARENT EASEMENT.— See Miller v. Skaggs, 79 W. Va. 645. 91 S. E. 
536. See also, post, EASEMENTS. 

210 



APPEAL AND ERROR. 

I. Oeneral Principles, 222. 

A. Review as a Matter of Right, 222. 

1. In General, 222. 

2. Legislative Power as to Causes and Courts, 222. 

a. General Rule, 222. 

b. Establishment of Special Courts of Appeal, 223. 

3. Proceedings in Which Appeals Are as of Right, 223. 

a. Controversies Concerning Roads, Ferries, or Landings, 223. 

b. Controversies Concerning Wharves, 223. 

c. Controversies Concerning Mills, 223. 

d. Appointment or Qualification of Personal Representative. 

Guardian, etc. 

f. Miscellaneous Proceedings, 223. 

g. Criminal Cases, 223. 

5. Estoppel or Waiver Affecting Right, 223. 

B. Necessity for Existence of Real Controversy, 223. 

C. Considered as New Actions, 224. 

D. Effect of Change in Law While Suit Pending, 225. 

n. Definitions and Oeneral Consideration of Various Modes of 
Review, 225. 

A. Definition and Nature, 225. 

1. Writ of Error, 225. 

2. Appeal, 225. 

5. Certiorari, 226. 

B. Distinctions, 226. 

1. Appeal and Writ of Error, 226. 

2. Appeal and Bill of Review, 226. 

3. Writ of Error and Certiorari, 226. 

4. Habeas Corpus Not a Substitute for Writ of Error or Cer^ 

tiorari, 226. 

5. Appeal and Prohibition, 226. 

6. Case Certified, 226. 

m. Appealable Judgments, Orders and Decrees, 226. 

A. Appealability as Dependent on Finality of Decisions, 226. 

1. In General, 226. 

2. What are Final Judgments and Decrees within Rule, 226. 

3. Applications of Rule in Particular Instances, 228. 

a. Decisions Held Final and Appealable, 228. 

b. Decisions Held Not Final and Unappealable, 220. 

B. Interlocutory Decrees, 232. 

1. In General, 232. 

3. Statutory Provisions, 232. 

a. General Statement of Provisions. 232. 

b. Decree or Order as to Dissolution of Injunctions, 232, 

c. Decree or Order Requiring Money to Be Paid, 233. 

d. Decree or Order Requiring Possession or Title of Property 

to Be Changed, 233. 

e. Decree or Order Adjudicating Principles of Cause. 233. 

C. Character of Proceedings, 235. 

1. Generally, 235, 

6. Contempt Proceedings, 235. 

7. Contested Election Cases, 236. 

211 



212 Appeal and Error 



8. Criminal Cases, 236. 

11J4- Crossing Proceedings, 237. 

11^. Dower Proceedings, 237. 

14. Habeas Corpus Cases, 237. 

15. Mandamus Cases, 237. 

17 J^. Partition Proceedings, 237. 

isyz. Proceedings Relating to Decedent's Estate, 237. 

19. Quo Warranto Proceedings, 237. 

22. Tax Valuation and Proceedings, 238. 

23. Relating to Insurance Companies, 238. 

24. Miscellaneous Proceedings, 238. 
D. Matters of Discretion, 239. 

1. In General, 239. 

2. Applications of Rule in Particular Instances, 240. 

a. In General, 240. 

b. Evidence, 241. 

c. Examination of Witnesses, 242. 

d. Change of Venue, 243. 

e. Continuance, 243. 

f. Costs. 243. 

g. Issues Out of Chancery, 244. 
h. Jury, 244. 

i. Parties, 245. 
j. Pleading, 245. 
k. New Trial, 245. 
1. Receivers, 246. 

F. Default Judgments and Decrees, 247. 

G. Void Decrees, 247. 
H. Consent Decree, 247. 

I. Judgment or Decree Liable to Be Reversed or Amended by Trial 

Court, 247. 
J. Appeals from Corporation Courts, 247. 
K. Action Compellable by Mandamus, 247. 

IV. Who May Appeal, 247. 

J4A. In General, 247. 

A. Parties Only, 247. 

B. Who Are Parties. 247. 

C. Must Be Aggrieved, 249. 

1. General Rule, 249. 

2. Applications of Rule, 249. 

2y2. Error Effecting Only Co-Party, 249. 

4. Effect of Assignment of Interest, 250. 

D. The Commonwealth, 250. 

1. In Criminal Cases, 250. 

a. In Virginia. 250. 

b. In West Virginia, 250. 

2. In Revenue Cases, 251. 

5. Other Proceedings, 251. 
Dj/^. Counties and Cities, 252. 

E. Joint Appeals, 252. 

F. Estoppel to Appeal, 252. 

V. Jurisdiction of Supreme Court of Appeals, 253. 

J/$A. In General, 253. 



Appeal and Error 213 



A. Constitutional and Statutory Provisions, 253. 

B. Jurisdiction Dependent upon Statute, 254. 

C. Jurisdiction Must Appear Affirmatively, 254. 

D. Burden of Proof, 254. 

E. Jurisdiction Where Matter in Controversy Is Merely Pecuniary, 254. 

1. Provisions Stated, 254. 

a. In Virginia, 254. 

b. In West Virginia, 255. 

2. Provisions Construed and Applied, 255. 

Ha. In General, 255. 

a. Meaning of Term "Matter in Controversy," 256. 

b. Costs Not Considered, 256. 

c. Inclusion of Interest, 256. 

g. Test Where Plaintiff Below Is Appellant, 257. 
h. Test Where Defendant Below Is Appellant, 257. 
j. Application of Pule in Particular Suits, 257. 

(1) Suits to Subject Property to Lien of Judgment, 257. 

(3) Consolidated Claims, 258. 

(5) Miscellaneous Instances, 258. 

3. Controversy of Jurisdictional Amount Must Be Continued in Ap- 

pellate Court, 260. 

F. Jurisdiction Where Matters Not Merely Pecuniary, 258. 

1/2. In General, 260. 

3. Controversies Touching the Title or Boundaries of Land, 261. 

a. In General, 261. 

b. Unlawful Detainer, .261. 

h. Suits to Enforce a Lien on Land, 261. 

4. Right to Levy Tolls or Taxes, 261. 

5. Controversies Touching the Constitutionality of a Law, 261. 

7. Controversies Touching the Probate of Wills, 262. 

8. Controversies Touching Mills, Roadways, Ferries or Landings, 263. 

9. Mandamus, Habeas Corpus, and Prohibition Cases, 263. 

VI. Limitations, 263. 

A. Law Governing, 263. 

B. Changes in Law, 263. 

C. Statutes Mandatory, 263. 

F. Period of Limitation, 263. 

1. Final Decrees and Judgments, 263. 

a. In Virginia, 263. 

b. In West Virginia, 263. 

2. Interlocutory Decrees and Judgments, 264. 

3. Calculation of Period, 264. 

G. No Inquiry into Merits after Statutory Period Elapsed, 264. 

VI V^. Raising and Reserving Grounds of Review, 264 

A. In General, 264. 

B. Motion Presenting Objection, 265. 

C. Motion for New Trial, 265. 

D. Motion for Correction of Error in Same Court, 265. 

Vn. Transfer of Cause, 266. 

A. In General, 266. 

B. Stay of Proceedings, 266. 

C. Notice of Appeal, 2^6. 

D. Petition for Appeal, etc., 266. 



214 Appeal and Error 



Yz, In General, 266. 
2. Form and Requisites, 267. 
a. In General, 267. 

c. Assignment of Error, 267. 

(1) Necessity and General- Consideration, 267. 

(2) Sufficiency, 268. 

(a) In General, ^68. 

(b) In Particular Instances, 269. 

d. Certificate of Counsel, 271. 
2J4- Transcript of Record, 271. 

^Yi, To Whom- Petition Presented — Endorsement of Judge, 271. 

E. Allowance of Appeal and Writs of Error, 271. 

1. When and by Whom Allowed, 271. 
Ej^. Rejection of Appeal, 271. 

F. Service of Process upon Appeal, Writ of Error or Supersedeas, 273. 

G. The Record, 272. 

1. In General, 272. 

2. Record at Law, 273. 

a. What Constitutes, 273. 

(1) Generally, 273. 

(2) Illustrations, 273. 

b. Effect of Certificate of Clerk, 276. 

c. Papers Merely Copied into the Record, 276. 

d. Conclusiveness of Record, 276. 

e. Conflict in Record, 276. 

3. Record in Chancery, 277. 

4. Amendment of Record after Term Ended, 277. 

6. Preparation and Printing of Record, 277. 

7. Costs and Fees, 278. 
H. Certiorari, 278. 

Vm. Bonds, 278. 

A. Suspension Bonds, 278. 

B. Appeal Bond, 278. 

Y2. In General, 278. 

1. Necessity, 278. 

a. General Rule, 278. 

b. Exceptions, 279. 

(1) Statutory Provisions, 279. 

2. Nature and Effect, 279. 

3. Effect of Failure to Give Bond, 279. 

4. Time of Execution, 279. 

5. Where and by Whom Taken, 279. 

6. By Whom Given, 279. 

6J/^. Necessity of Acknowledgment, 279. 

8. Obligee, 279. 

9. Penalty, 280. 

10. Conditions, 280. 

11. Sureties, 280. 

12. Defective Bond, 281. 

13. Action on Bond, 281. 

IX. Effect of Appeal, 28 1. 

C. Writ of Error, 281. 

D. Appeal and Supersedeas, 282. 



Appeal and Error 215 

E. Interest Pending Appeal, 282. 

X. Abatement of Appeal, 283. 

V^A. In General, 283. 

A. By Death of Party, 283. 

}4. Generally, 283. 

1. Pending Appeal, 283. 

a. Generally, 283. 

b. Death of Appellant, 283. 

c. Death of Appellee, 283. 

XI. Dismissal of Appeal, 284. 

AJ4. Voluntary Dismissal, 284. 

B. Grounds, 284. 

1. In General, 284. 

2. Want of Jurisdiction, 285. 

3. Want of Actual Controversy, 286. 

4. Appeal Barred by Limitations or Laches, 286. 
B^. Motion to Dismiss, 286. 

D. Effect of Dismissal, 287. 

Xn. Reinstatement, 287. 
Xm. Successive Appeals, 287. 
XIV. Proceedings on Review in Oonrt of Appeals, 287. 

J^A. In General, 287. 

A. Transfer of Case to Another Place of Session, 288. 

B. Taking up Causes Out of Turn, 288. 
D. Rule of Stare Decisis, 288. 

D^. Number of Judges Necessary to Decision, 288. 
£. Effect of Equal Division of Court, 288. 
E54. Theory of Case in Lower Court, 289. 

F. Scope, 289. 

1. In General, 289. 

VA. Matters Not Necessary to Decision, 292. 

2. Matters Not Acted on by Lower Court, 294. 
25^. Decree or Order Not Appealed from, 295. 

3. Previous Appealable Decrees, 295. 

4. Previous Decrees Not in Themselves Appealable, 295. 
4^. Appeal from Specific Parts of a Decree, 295. 

6. Judgment Sustaining Demurrer to One Count, 296. 

7. Proceedings Subsequent to Appeal, 296. 

9. Appeal from Order Dissolving or Refusing to Dissolve Injunc- 
tion, 296. 
9>^. Appeal from Decree Appointing Receiver, 297. 
10^. Where There Have Been Two Trials, 297. 
1254. Appeal from Interlocutory Decrees, 297. 
12y^. Appeal from Decrees Confessed, 297. 

13. Adjudication of Rights of Parties Not Appealing, 297. 

a. Where Parties Stand upon Same Ground, 297. 

b. Where Parties Stand on Different Grounds and Rights are 

Separate, 298. 

(1) General Rule, 298. 

(2) Joint Judgments, 298. 

14. Correction of Errors against Appellee, 298. 
a. On Cross Assignment of Error, 298. 



216 



Appeal and Error 



I 

• ! 

H 



16. Objections Not Raised Below, 298. 

a. General Rules, 298. 

(1) Irregularities Not Going to Merits, 298. 

(2) Substantial Defects, 299. 

b. Applications of Rules in Particular Instances, 299. 

(2) Want of Jurisdiction or Venue, 299. 

(3) Objections as to Parties, 299. 

(4) Form of Action, 300. 

(6) Process, 300. 

(7) Pleadings, 300. 

(a) Bill or Declaration, 300. 

(b) Plea, Answer or Subsequent Pleading, 301. 

(c) Indictment, Information or Presentment, 301. 

(d) Rulings on Demurrer — Causes of Demurrer Not 

Assigned Below, 301. 

(8) Nonjoinder of Issue, 302. 

(11) Defenses Not Raised Below, 302. 

(12) Objections to Grand or Trial Jury,* 303. 

(13) Objections as to Judge, Time and Form of Trial, 303. 
(13J<2) Remarks of Counsel, 303. 

(14) Competency of Witnesses, 304. 

(15) Evidence, 304. 

(a) Admission or Exclusion, 304. 

(b) Lack of Evidence, 306. 

(c) Questions to Witnesses, 306. 

(16) Depositions, 306. 

(17) Variance, 307. 

(18) Instructions, 307. 

(19) Verdict and Judgment, 308. 

(20) Excessive Damages, 309. 

(22) Reference or Failure to Refer Cause to Commis- 
sioner, 309. 
(^6) Commissioner's Report, 309. 
(39) Material Alteration in Note, 310. 
(44) Judicial Sales, 310, 

(54) Ruling of Court on Motion for New Trial, 311. 

(55) Matters Which Might Have Been Corrected on Mo- 

tion Below, 311. 

(56) Questions of Fact, 311. 

(57) Constitutionality of Statute Creating Offense, 311. 

(58) Objections to Final Hearing of Injunctions, 311. 

(59) Power of Trustee to Sell, 311. 

(60) Order Refusing Probate, 312. 

(61) Commitment to Receiver of Property Not in Contro- 

versy, 312. 

(62) Failure to File Set-oflF. 312. 

(63) Writ of Error Not Perfected in Time, 312. 

(64) Assessment of Damages to Property, 312. 

(65) Other Instances, 312. 
G. Rules of Decision, 313. 

1. Generally. 313. 

2. On Demurrer to Evidence. 313. 

3. Where Facts Proved Are Certified, 316. 

4. Where Evidence and Not Facts Certified, 316. 



Appeai. and Error 217 



5. Where There Have Been Two Trials Below, 318. 
H. Reversible Error, 319. 

1. General Rules, 319. 

a. Must Be Manifest and Apparent of Record, 319. 

b. Burden of Proof, 320. 

c. Must Be Prejudicial, 320. 

(1) In General, 320. 

(2) Necessity for Prejudice to Rights of Appellant, 321. 

(3) Presumptions as to Prejudice, 322. 

(4) Beneficial Error, 322. 

d. Must Be Material — Technical Errors, 323. 

2. Applications of Rules in Particular Instances, 324. 

54a. In General, 324. 

a. Errors in Parties, 325. 
a}4. Errors in Pocess, 326. 

b. Errors in Pleadings, 326. 

(1) In General, 326. 

(2) Declaration, 327. 

(3) Bill of Particulars, 327. 

(4) Plea or Answer, 328. 

(5) Replication, 329. 

(6) Indictment or Information, 330. 

(7) Amendments, 330. 

(8) Rulings on Demurrer, 330. 

(9) Issues, Proof and Variance, 331. 

c. Errors in Evidence, 332. 

(H) In General, 332. .. 

(1) Admission, 333. 

(a) In General, 333. 

(b) Presumption as to Prejudicial Effect of Erroneous 

Admission, 335. 

(c) Evidence Favorable to Complainant, 336. 

(d) Where Facts Established by Other Evidence, 336. 

(e) Where Proper Result Reached, 337. 

(f) Evidence Not Changing Result of Trial, 337. 

(g) Where Verdict Authorized by Other Evidence, 338. 
(h) Irrelevant and Immaterial Evidence, 338. 

(i) Cure of Erroneous Admission, 339. 

aa. By Withdrawal and Instructions, 339. 

bb. By Other Evidence, 341. 
(j) Particular Kinds of Evidence, 341. 

(2) Exclusion, 343. 

(a) In General, 343. 

(b) Presumption as to Prejudicial Effect of Erroneous 

Exclusion, 344. 

(d) Subsequent Introduction of Rejected Evidence, 345. 

(e) Exclusion of Testimony That Would Not Have 

(c) Where Facts Sought to Be Proved Are Proved by 

Other Evidence, 345. 
Changed Result, 345. 

(f) Irrelevant and Immaterial Evidence, 346. 
. - (g) Verdict Curing Error, 346. 

(h) Particular Instances of Harmless Error, 346. 

(3) Variance, 357. 



218 



Appeal and Error 



(4) Rulings on Questions to Witnesses, 347. 

d. Errors Occurring at the Trial, 349. 

(1) In General, 349. 

(2) Remarks of Court, 350. 

(3) Remarks and Conduct of Counsel, 350. 

e. Errors in Instructions, 351. 

(1) Giving, 351. 

(a) In General, 351. 

(b) Error Favorable to Complainant, 352. 

(c) Similar Instruction Given at Request of Complain- 

ant, 353. 

. (d) Errors Rendered Harmless by Other Parts of 
Charge, 353. 

(e) Error Immaterial in View of Verdict and Judg- 

ment, 354. 

(f) Particular Instances of Harmless Error, 356. 

(g) Reversible Error— Presumption as to Prejudice, 360. 

(2) Refusal, 361. 

(a) In General, 361. 

(b) Where Jury Fully Instructed, 362. 

(c) Effect of Verdict, 363. 

f. Errors in Verdict or Judgment, 363. 

g. Errors in Costs, 365. 

h. Errors in Chancery Proceedings, 365. 
(^) In General, 365. 

(3) Errors in Interlocutory Decrees, 366. 

(4) Depositions, 366. 

3. Errors Not Available on Appeal, 367. 

a. Invited Error, 367. 

(1) In General, 367. 

(2) Instructions, 368. 

b. Errors Consented to, 369. 

c. Waiver or Estoppel, 369. 

(1) In General, 369. 

(2) Relating to Evidence, 371. 
5. Effect of Statute of Jeofails, 372. 

5. Release of Error, 372. 

6. Error Waived on Appeal, 372. 
I. Presumption on Appeal, 372. 

1. General Rules, 372. 

2. Applications of Rules in Particular Instances. 373. 

(a) In General, 373. 

(b) Process, 375. 

(c) Pleading, 375. 

(d) Evidence, 376. 

(e) Instructions, 377. 
(0 Jury, 377. 

J. Affirmance, 377. 

1. In General, 377. 

1^. Sufficient Evidence to Support Verdict or Findings, 379. 
a. Verdict of Jury, 379. 

(1) In General, 379. 

(2) Approval by Trial Court, 383. 

(3) Disapproval by Trial Court, 384. 



Appeal and Error 219 



b. Findings of Court, 384. 

c. Findings of Commissioner in Chancery, 383. 

d. Findings of Public Service Commission, 386 

2. Where Evidence Conflicting, 386. 

a. Verdict of Jury, 386. 

(1) In General, 386. 

(2) Approval by Trial Court, 390. 

b. Findings of Court, 391. 

c. Findings of Commissioner in Chancery, 393. 

3. Decision Substantially Right, 394. 

4. Where Reversal Would Be Unavailing to Complainant, 395. 

6. Amendment, 395. 

7. Damages, 398. 

8. EflFect, 398. 

8J4. Partial Affirmance, 398. 
K. Reversal, 399. 

^. In General, 399. 

1. Entry of Such Judgment as Should Have Been Entered Below or 

Should Seem Righjt and Proper, 402. 

a. In General, 402. 

b. Rulings on Demurrer, 404. 

c. Case Heard without Jury, 405. 

d. In Criminal Cases, 406. 

2. Remand, 406. 

a. When Cause Will Be Remanded, 406. 

(1) In General, 406. 

(2) Want of Proper Parties, 411. 

(3) To Allow Amendment of Pleading, 411. 

(4) To Determine Counsel Fees, 414. 

(5) For Trial of Issue Out of Chancery, 415. 

(6) For Reference, 415. 

b. Admission of New Parties after Remand, 415. 

3. EflFect, 415. 

4. Restitution, 416. 

KJ4. Remand without Decision, 416. 

L. Execution of Decree, 417. 

M. Costs in Appellate Court, 417. 

N. Certification of Judgment to Trial Court, 417. 

0. Order Books, Dockets, etc., of District Courts, 417. 

P. Manuscript Records and Briefs, 417. 

Q. Mandate and Proceeding Thereon, 417. 

XV. Conclnsiveness of Decisions of Appellate Courts, 4i7. 

A. Court of Appeals, 417. 

1. In General, 417. 

2. On Questions of Jurisdiction, 418. 

3. On Lower Court, 419. 

4. On Rehearing, 419. 

5. On Bill of Review, 419. 

7. Conclusiveness on Second Appeal, 420. 

8. As to Whom Conclusive, 421. 

XVL Appeals from Inferior Tribunals, 422. 

A. In Civil Cases, 422. 



220 Appeal and Error 



1. In General— Appellate Jurisdiction of Circuit Courts, 422. 

2. Review of Justices Judgment, 423. 

a. Appeal, 523. 

(1) When Proper, 423. 

(a) General Rule, 423: 

(b) Cases Tried by Jury, 424. 

(2) Jurisdiction, 424. 

(a) In General, 424. 

(b) Jurisdictional Amount, 425. 
aa. In Virginia, 425. 

bb. In West Virginia, 425. 
(2^) Proceedings for Review, 426. 

(3) Time of Taking. 426. 

(a) In General, 426. 

(b) Effect of Failure to Take within Ten Days, 426. 
aa. In General, 426. 

bb. What Constitutes Good Cause for Delay, 427. 

(6) Effect of Appeal, 427. 

(6^) Proceedings on Appeal, 428. 

(7) Dismissal of Appeal, 429. 

(8) No Reversal for Harmless Error, 430. 

b. Certiorari, 430. 

25^. Civil and Police Justices, 430. 

3. Appeals from County Courts, 430. 

a. In General. 430. 

4. Appeal from Decision of Mayor. 430. 

6. Appeal from Decision of City Council, 431. 

7. Appeal from Decision of Board of Supervisors, 431. 

8. Appeal from Decision of County Commissioners, 431. 
9]/^. Appeal from Clerk, 431. . 

10^. Appeal from State Entomologist, 431. 

a. In Virginia, 432. 

b. In West Virginia. 433. 

101^. Appeals from Public Service Commissions, 432. 
10^4- Appeal from Industrial Commission, 434. 

11. Procedure in Appellate Court, 434. 
b. On Appeal, 434. 

(Vz) In General, 434. 

(4) Where Judgment Is Reversed. 434. 

12. Review of Action of Circuit Court, 434 
B. In Criminal Cases, 434. 

1. Generally, 434. 

2. Appeal from Justice, 435. 

3. Appeal from Decision of Mayor, 436. 

XVn. Appeal to Supreme Court of United States, 436. 

CROSS REFERENCES. 

See the title APPEAL AND ERROR, vol. 1, p. 418, and references there 
given. In addition, see post, ARGUMENT OF COUNSEL; ASSIGNMENT OF 
ERRORS: BILL OF PARTICULARS: BILL OF REVIEW; CERTIORARI: 
CONTINUANCES: COSTS; DEMURRERS; EVIDENCE; EXCEP- 
TIONS, BILL OF: FINAL JUDGMENTS AND DECREES; FORMER 
ADJUDICATION: INFANTS; INJUNCTIONS: INTOXICATING LIQ- 
UORS; ISSUES TO JURY; JUDGMENTS AND DECREES; JURISDIC- 



Appeai, and Error 221 



TION; JURY; LAW OF THE CASE; MANDAMUS; MANDATE AND 
PROCEEDINGS THEREON; NEW TRIALS; PROHIBITION; RE- 
CEIVERS; REMITTITUR; RES ADJUDICATA; SET-OFF, RECOUP- 
MENT AND COUNTERCLAIM; STARE DECISIS; TRUSTS AND TRUS- 
TEES; VENUE; WITNESSES. As to appeal from finding of State Ento- 
mologist, see ante, AGRICULTURE. As to appeal in attachment proceedings, 
see post, ATTACHMENT AND GARNISHMENT. As to appeals from vio- 
lation of Automobile law, see post, AUTOMOBILES. As to finding of an 
amended petition in the circuit court, on appeal from justice's court being 
grounds for a continuance, see post, CONTINUANCES. As to refusal to 
grant continuances as ground for reversal, see post, CONTINUANCES. As 
to appeals in forma pauperis, see post, C05TS. As to appeal from action of 
board of supervisors, see post, COUNTIES. As' to appeal from judgment of 
juvenile and domestic relation's court, see post, COURTS; INFANTS. As to 
refusal to consider demurrer as ground for reversal, see post, DEMURRERS. 
As to appeal from drainage proceedings, see post, DRAINS AND SEWERS. 
As to appeals in election cases generally, see post, ELECTIONS; as to right 
of person denied registration as a voter to appeal to the circuit or corporation 
court, see post, ELECTIONS. As to appeal from refusal of removal of em- 
balmer's license, see post, EMBALMING. As to conflict between bill of ex- 
ceptions and stenographer's notes, see post, EXCEPTIONS, BILL OF. As 
to what record must show for review, see generally, post, EXCEPTIONS, 
BILL OF. As to form of exceptions and objections, see post, EXCEPTIONS, 
BILL OF. Appeal from action of Commissioner of Agriculture relating to 
fertilizer, see post, FERTILIZER. As to appeal from action of Dairy and 
Food Commissioner, see post, FOOD. As to appeal from proceedings of 
health council, in post, HEALTH; as to appeal from commitment of inebriate, 
etc., to private hospital, see post, HOSPITALS AND ASYLUMS. As to ap- 
peal of person accused of desertion and non-support of wife or children, see 
post, HUSBAND AND WIFE; PARENT AND CHILD. As to appeal from 
proceedings relating to delinquent or destitute children, see post, INFANTS. 
As to appeal from ruling or order of Commissioner of Labor, see post, LABOR. 
As to appeals from decisions relating to licenses, see post, LICENSES. As 
to appeals from annexation proceedings, see post, MUNICIPAL CORPORA- 
TIONS. As to motion for new trial in trial court as prerequisite to appel- 
late review, see post, NEW TRIALS. As to the necessity for motion for 
new trial before review can be had, see post, NEW TRIALS. As to confer- 
ring jurisdiction upon circuit court to hear motion for new trials, see post, 
NEW TRIALS. As to appeal from order revoking licenses to prac- 
tice medicine or dentistry, see post, PHYSICIANS AND SURGEONS. As 
to sufficiency of objection to pleading, see post, PLEADING. As to writ of 
error or supersedeas to judgment in public land proceedings, see post, PUBLIC 
LANDS. As to writ of error from the assessment and taxation of railroad and 
canal companies, see post, PUBLIC SERVICE COMMISSION; TAXATION. 
As to appeals from decisions of public school officers, see post, SCHOOLS. 
As to appeals from special assessment proceedings, see post, SPECIAL AS- 
SESSMENTS. As to appeal from award of contract for public printing on 
paper, see post, STATE. As to appeal from taxation proceedings, see post, 
TAXATION. As to appeal from sale of delinquent lands for taxes, see post, 
TAXATION. As to appeal in proceedings relating to turnpike, see post, 
TURNPIKES AND TOLLROADS. As to appeal from assessment for dam- 
ages caused by coast survey, see post, UNITED STATES. As to appeal from 



I 



222 



Appeal and Error 



action of State Board of Health granting or refusing to permit to furnish 
water, to public, see post, WATER COMPANIES AND WATERWORKS. 
As to appeal from the decision of the clerk in proceedings to probate a will 
see post, WILLS. As to rules of court relating to appellate practice, see 129 
Va. p. v.; »83 W. Va. p. xli. 



I. GENERAL PRINCIPLES. 

A. REVIEW AS A MATTER OF 
RIGHT. 

1. In General. 

An appeal from the decision of an 
inferior court does not lie, unless ju- 
risdiction to entertain such appeal is 
conferred by Constitution or statute. 
Richmond iCedar Works, etc., Co. v. 
Harper, 129 Va. 481, ;106 S. E. 516; 
Carskadon v. Board, 61 W. Va. 468, 
471, 56 S. E. 834; Wingfield .f. Neall, 

60 ^V. ,Va. 1106, 113, 54 S. E. 47. See 
post, "Jurisdiction Dependent upon 
Statute," V, B. 

By § 8, art. 8, W. Va. Const., the 
right of appeal in cases as are therein 
provided for is secured, which can not 
be taken away or restricted by legis- 
lative enactment. Carskadon v. Board, 

61 W. Va. 468, 56 S. E. (834. See W. 
Va. Const., Art. 8, § 6. 

Statutory Provision. — Va. Code 
1919, § €336; Barnes Code, ch. 135, § 1. 

Compliance with Statutory Condi- 
tions Precedent. — The defendant is en- 
titled to an appeal as a matter of right, 
upon compliance with the statutory 
conditions precedent. County Court v. 
Holt, -61 W. rVa. 154, 156, 56 S. E. 205. 

Conditions precedent to the allow- 
ance of an appeal, prescribed by the 
statute, are regarded jurisdictional, and 
must be strictly complied with. Smith 
IK West Virginia Cent. Gas Co., 65 
W. Va. ^216, 217, 63 S. E. 1096. See 
Tyson v. Scott, 116 Va, 243, «1 S. E. 
57. 

But (Whether these conditions have 
been complied with is a matter calling 
for judicial inquiry and determination. 
County Court v. Holt, 61 W. Va. 154, 
156, 56 S. E. 205. 

No Religious or Test Oath Required 
as Prerequisite to AppeaL — Const, of 
W. Va., Art. Ill, § 11. 



Right to Appeal Question lor Ap- 
pellate Court.— It is the duty of the 
appellate court to grant a'^writ of er- 
ror prayed for unless the decision 
called in question is plainly right. 
Townsend v. Norfolk 'R., etc., Co., 105 
Va. 22, 39, '52 S. E. 970. 

Construction of Sututes Providing 
for AppeaL — Statutes providing for the 
right of appeal are remedial in their 
nature, and liberal construction will be 
given to the language employed. State 
V. Nangle, 83 W. Va. 224, 95 S. E. 
833. 

A statute providing for the right of 
appeal will be construed so as to main- 
tain the right where this can be done 
without violating the well established 
rules for construing statutes. State v. 
Nangle, 82 |W. Va. 224, 95 S. E. 833. 

But it tts not within the powers of 
the courts to enlarge, by construction, 
the constitution or statute so as to ex- 
tend the [remedy by appeal, if its pro- 
visions /do not call for such construc- 
tion, but, giving them a liberal con- 
struction, they must be construed and 
applied as they exist. Carskadon z?. 
Board, i61 W. .Va. 468, 471, 56 S. E. 
834. 

2. Legislative Power as to Causes and 
Courts. 

a. General Rule. 

See post, "Controversies Concerning 
Roads, Ferries or Landings," I, A, 3, a. 

The right of appeal is subject to leg- 
islative control. Richmond Cedar 
Works, etc., Co. v. Harper, 129 Va. 
481, 106 S. E. 516. 

"Where the constitution does not ex- 
pressly give the right of an appeal, the 
legislature has the right to extend or 
deny this remedy to the litigant." Cars- 
kadon V. jBoard, 61 W. Va. 468, 471, se 
S. E. 834; Hulvey v, Roberts, 106 Va. 
189, 55 S. E. 585. 






Appeai, and Error 



223 



Amount in Controversy. — Under the 
Virginia constitution, the legislature 
has no right to extend the remedy by 
appeal, in cases dependent upon the 
amount in controversy, but under the 
West Virginia constitution the legisla- 
ture has no right to restrict the ap- 
peal but would have the power to ex- 
tend the remedy. Carskadon v. .Board, 
61 W. Va. 468, 473, 56 S. tE. 834. 

b. Estabfishment of Special Courts of 
Appeal. 
Statutory Provisions. — Va. Code 
1919, § 5873. 

8. Proceedings in |Which Appeals Are 
as of Right 

a. Controversies Concerning Roads, 
Ferries^ or landings. 

Va. Code 1919, § 6336; Barnes Code, 
ch. 135, § 1. 

While it is true that under the gen- 
eral road law there is an unrestricted 
appeal to the supreme court, it is 
within the power of the legislature, by 
special enaclment, to limit that right 
to judicial questions only. Wilburn v. 
Raines, Mil Va. 334, 68 S. E. 993. 

b. Controversies Concerning Wharves. 
Statutory Provisions See Va. Code 

1919, § 6336. 

c. Controversies Concerning Mills. 
See Va. Code 1919, § 6336; Barnes 

Code, ch. 135, § H. 

d. Appointment or Qualification of 
Personal Representative, Guardian, 
Etc. 

Va, Code 1919, g 6336; Barnes Code, 
ch. 135, § 1. 

f. Miscellaneous Proceedings. 

Generally.— Va. Code 1919, § 6336; 
Barnes Code, ch. 135, § 1. 

Proceedings before State Corpora- 
tion Commission. — ^Va. -Code? 1919, <§ 
3734. See post, "Appeals from (Public 
Service Commissions," XVI, A, 10?.^. 

Failure or Refusal of Conmiissioner 
of Insurance to Review License of In- 
surance Company. — Va. Code 1919, § 
4210. 



Proceedings Relating to Public Serv- 
ice Corporations. — Va. Code 1919, § 
3902. 

Tax Proceedings.— Va. Code 1919, §§ 
2237, 2^63, 2285, "6336; iBarnes Code, ch. 
135, § 1. 

g. Criminal Cases. 

Granted as Matter of Right — Va. 
Acts 1920, p. 416; Pollards Code .1920, 
p. 308 amending Va. Code 1919, § 6348; 
Barnes jCode, ch. 135, § 1. 

Verdict on Plea of Guilty. — Ordina- 
rily an appeal does not lie in a criminal 
case from a judgment of conviction 
rendered upon a plea of guilty. Nicely 
V. Butcher, 81 |W. Va. 247, 94 S. E. 
147. 

Before receiving a plea of guiilty in a 
criminal case, the court should see that 
it is made by a [person of competent 
intelligence, freely land voluntarily, and 
with a full understanding of its nature 
and effect, and of the facts on which 
it is founded. If lit is doubtful whether 
the party accused made such plea !of 
guilty, and it clearly appears that he 
had no tsuch purpose, and did not know 
that his actions were being so con- 
strued until afterward, when he 
promptly repudiated the construction 
given his conduct by the court, an ap- 
peal will be allowed to "a judgment en- 
tered thereon. Nicely v. Butcher, 81 
W. Va. 247, 194 S. E. 147. 

5. Estoppel or Waiver Affecting Right. 

See post, "Estoppel to Appeal," 

IV, IF. 

B. NECESSITY FOR EXISTENCE 
OF REAL CONTROVERSY. 

Whenever it appears, or is made to 
appear by extrinsic evidence, that there 
is no actual controversy between the 
litigants, or that, if it once existed, it 
has teased, the appeal or writ of error 
should be dismissed. Courts of justice 
sit to decide actual controversies by a 
judgment [which can be enforced, and 
not to give opinions upon moot ques- 
tions or abstract propositions of law. 
Hamer v. Commonwealth, 107 Va. 636, 



224 



Appeai, and Error 



59 S. )E. 400; Roanoke R., etc., Co. v. 
Young, 108 Va. 783, 62 S. E. 961; Nor- 
folk V, Portsmouth, 124 Va. 639, 98 S. 
E. 755; Levy tr. Kosmo, 129 Va. 446, 
106 S. E. 228; State v. Carter, 63 W. 
Va. 684, 60 jS. E. 873; Whyel v. Jane 
Lew Coal, etc., Co., 67 W. Va. 651, 
€55, 69 S. E. 192; First Nat. Bank v. 
Cootes, 74 W. Va. 112, 81 S. E. 844. 

When pending ja writ of error, with- 
out fault of a party, an event occurs 
rendering it impossible for the appel- 
late court, if it should decide in favor 
of the plaintiff, to grant him substan- 
tial relief, the court will not decide the 
merits and give formal judgment, but 
will dismiss the writ of error without 
awarding costs. Elbon v. Hamrick, 55 
W. Va. 236, 46 S. (E. 1029; Hamilton 
V Ammons, 56 W. Va. 190, 49 S. E. 
128; DeBoard v. Camden Interstate R. 
Co., '62 W. Va. 41, 51, 57 S. E. 279, 
citing Baker v, Tappan, '56 W. Va. 349, 
49 S. E. 447; Interstate Coal, etc., Co. 
V, Clintwood Coal, etc., Co., 105 Va. 
574, 576, |54 S. E. 593. 

But dn the case of Kaufman v. Mas- 
tin, ,66 W. Va. 99, 166 S. lE. 92, it was 
said that: "Whenever the judgment, if 
left unreversed, will preclude the party 
against whom it stands as to a fact 
vital to his rights, though the judgment 
if affirmed may not be directly en- 
forceable by reason of lapse of time or 
change of circumstances pending ap- 
peal, a writ of error will not be dis- 
missed as linvolving only a moot case." 
See also, }Ferguson v. Millender, 32 W. 
Va. 30, 9 ,S. E. 38. Barbee v. Howard, 
66 W. Va. 631, 632, 66 S. E. 1002. 

An appeal from a decree setting 
aside conveyances as having been made 
with intent to hinder, delay and de- 
fraud creditors can not be dismissed on 
the motion of the appellee, over the 
objection of the parties to the deeds, 
as involving only moot cjuestions, on 
proof of payment of the debt by the 
grantee and release of the decree by 
the creditor, subsequent to the date of 
the decree. First (Nat. Bank v. Dan- 
ser, 70 W. Va. 529, 74 S. E. '623. 



Costs. — "This court will not deter- 
mine, the Imoot questions presented in 
order that lit may be advised as to who 
should pay costs." State v. Jones, 81 
W. ,Va. 182, 94 S. E. 120. 

Cases Held 'Moot — ^Levy r. Kosmo, 
129 Va. 446, 106 S. E- 228; Boatright 
V. Litz, 125 Va. 613, 100 S. E. 547. 

Acquisition of Title Rendering 
Question as to /Easement Moot. — Ping- 
ley V. Pingley, 82 W. Va. 228, 95 S. E. 
860. 

Question of Title to Office Where 
Term Has Expired. — Barbee v. How- 
ard, 66 W. Va. 1631, 66 S. E. 1002. See 
Baker v. Tappan, 56 W. Va. 349, 49 S. 
E. 447; (Hamilton w. Ammons, 56 W. 
Va. 190, 49 S. >E. 128. 

Judgment Ousting Public Officer 
Where Term Has Expired. — State v. 
Jones, 81 W. iVa. 182, -94 S. 'E. 120. 

Election Pending Writ of Error Re- 
lating to (Appointment of Election Of- 
ficials.— State V, Carter, 63 W. Va. 684, 
60 S,. E. 873. 

Removal by Codefendant of Laun- 
dry Elnjoined as Nuisance. — Garrett v. 
Smcad, 121 Va. 390, 93 S. E. 628. 

Dissolution of Injunction as Consti- 
tuting Moot Question. — Crawford v. 
Le Fevre, 78 fW. iVa. 73, 88 iS. E. 1087. 

Discharge of Defendant on Habeas 
Corpus. — State v. Emsweller, 78 W. 
Va. 214, 188 S. E. 787. 

Discluo-ge in Bankruptcy Pending 
AppeaL — This -court will not dismiss 
an appeal, as presenting only a moot 
question, because defendant was dis- 
charged in bankruptcy pending the ap- 
peal. First Nat. GBank v. Cootes, 74 W. 
Va. 112, 81 S. E. 844; Meyers Bros. v. 
Harman Bros., 78 W. Va. 460, 89 S. E. 
]4G. 

C. CONSIDERED AS NEW AC- 
TIONS. 

A writ of error or appeal prosecuted 
in Supreme Court of Appeals is the 
beginning of a new suit, and not a con- 
tinuation of an old suit. State v. 
Moore, 77 W. Va. 325, 87 S. E. 367; 
Perkins v. PfalzgraflF, 60 W. Va. 121, 



Appeal and Error 



225 



132, 53 S. E. 913; Wingfield v. Neall, 
60 W. Va. 106, \54 S. E. 47. 

An appeal to reverse a final decree is 
a new lis pendens, as regards pur- 
chasers claiming title under the decree, 
and is not a mere continuation of the 
original suit. Perkins v. Pfalzgraff, 60 
W. Va, 121, -132, 63 S. E. 913; Dunfee 
V, Childs, 459 W, Va. 225, 53 S. E. 209. 

"Except where the statutory pro- 
ceeding called an appeal is nothing 
more than a substitute for the com- 
mon-law l"emedy iby writ of error, an 
appeal differs from the writ of error 
in that it lis not a new suit, but a con- 
tinuation of the suit below." Wingfield 
V. Neall, f60 W. Va. 106, 114, 54 S. 
E.47. 

D. EFFECT OF CHANGE IN LAW 

WHILE SUIT PENDING. 
See post, ''In Virginia," V, E, 1, a. 

XL DEFINITIONS AND GENERAL 

CONSIDERATION OF VA- 

RIOUS MODES OF 

REVIEW. 

A. DEFINITION JAND NATURE. 
1. Writ of Error. 

See ante, "Considered as New 'Ac- 
tions," I, C; post, "Appeal and Writ of 
Error," II, B, 1. 

" 'A writ of error lies in a common 
law action or criminal case, and is in 
the nature of a new suit. It is awarded 
by a superior to an inferior court of 
record, and operates to transfer the 
record of the case (but nothing else) 
to the superior court, where the judg- 
ment of the inferior court is reviewed. 
Upon such review the appellate court 
either affirms or reverses the judgment 
of the lower court, and if it reverses, 
enters such judgment bs the inferior 
court ought to have entered. On a 
writ of error generally only questions 
of law are reviewed. In the federal 
courts, and in inany of the state courts, 
the findings of the trial courts upon 
questions of fact are conclusive.*" 
Tyson v, Scott, 116 Va. 243, 251, 81 S. 

E. 57. 

—15 



2. Appeal 

See ante, "Considered as New Ac- 
tions," 'I, C; post, "Appeal and Writ of 
Error," II, B, 1. 

The word "appeal," when used in 
practice, is defined as: "The removal 
of a cause from a court of inferior to 
one of superior jurisdiction, for the 
purpose of obtaining a review and re- 
trial." Williamson v. Musick, 60 W. 
Va. -59, 62, 53 "S. E. 706. 

"In the civil law and equity juris- 
prudence, its object was to take the 
whole case to the higher tribunal, there 
to be tried and determined de novo, 
upon the issues between the parties, as 
though the cause had origfinated in the 
appellate court. It will be found, upon 
examination of thlis question, that it is 
attended with considerable confusion, 
from "the fact that in some of the states 
the appellate proceeding is denomi- 
nated 'appeal,' while in ^others the dis- 
tinction between appeals in equity and 
review upon petition in error is strictly 
adhered to." Wingfield v. Neall, ^ W. 
Va. ^106. Ill, J54 S. E. 47. 

"In Burks on Pleading and Practice, 
at § 372, it is said: 'For practical pur- 
poses, though perhaps not technically 
accurate, Iwe may say that, under ex- 
isting rules of practice, an appeal lies 
from a lower to a higher Icourt, |and is 
a continuation of the same case upon 
the isame evidence before the higher 
tribunal, and the case is simply heard 
de novo before the higher tribunal. It 
is a rehearing before the higher court, 
with no presumptions against the ap- 
pellant, except in case of doubt, where 
the decision of the lower tribunal will 
be affirmed. With this exception, the 
decision of the lower court has no ef- 
fect. An appeal lies in a suit Sn chan- 
cery. The party taking the appeal is 
called thd appellant The defendlant 
to the appeal is called the appellee.'" 
Tyson v. Scott, fll6 Va. 243, 251, 81 S. 
E. 57. 

As Denoting Appellate JurisdictionL 
—In Wingfield v, Neall, 60 W. Va. 106, 
111, 54 S. E. 47, the court said: "Ap- 



226 



Appeai. and Error 



peal is sometimes used with us, in legal 
language, to denote the nature of ap- 
pellate jurisdiction as distinguished 
from original jurisdiction, without re- 
gard to the particular mode by which 
a cause is transmiitted to a superior 
court. In fact, our constitution, ar- 
ticle IVIII, § 3. so denominates it." 

6. Certiorari. 
See post, CERTIORARI. 

B. DISTINCTIONS. 

1. Appeal and Writ of Error. 

"An appeal is a process of civil-law 
origin, and removes a cause entirely, 
subjecting the facts as >vell as the law 
to a review and retrial; but a writ of 
error is ta suit of common-law origin, 
and it removes nothing for retrial but 
the law." Wingfield v. Neall, 60 W. 
Va. 106, 112, 54 S. E. 47. 

In Wingfield v, Neall, 60 W. 'Va. 
106, 113, 54 iS. E. 47, it is said in reply- 
ing to appeal: "It is a process issuing 
out of this court lupon petition assign- 
ing errors, the same as upon applica- 
tion for writ of error. In fact, the writ 
of error, and appeal, tinder our statute, 
whrich are used to remove or (bring 
causes to this court, are only distin- 
guishable in this — appeal lies to equity 
proceedings, and writ of error to law 
causes." 



2 Appeal and Bill of (Review. 

See post, BILL OF REVIEW. 

3. Writ of Error and Certiorari. 
See post, CERTIORARI. 

4. Habeas Corpus Not a Substitute for 

Writ of Error or Certiorari. 

See post, CERTIORARL 

Error in an order committing chil- 
dren to the custody of the Children's 
Home Society of Virginia could not 
have been reviewed by the Supreme 
Court of Appeals in a proceeding by 
application for a writ of Jhabeas corpus, 
but only by appeal from such order. 
Ex Parte Mallory, 122 Va. 298, 94 S. 
E. 782. 



6. Appeal tfmd Prohibition. 

Ruling As to Inability of Husband 
to Pay Suit Money. — In a tsuit for di- 
vorce the question of the husband's 
ability to pay suit money, because of 
his infancy or penury is properly 
within the jurisdiction of the trial 
court, and its rulings thereon are not 
reviewable upon a rule in prohibition, 
but by appeal only. State v. Kittle, 
86 W. Va. 587, 1(H S. E. 44. See post, 
PROHIBITION. 

6. Case Certified. 

See post, CASE CERTIFIED OR 
RESERVED. 

in. APPEALABLE JUDGMENTS, 
ORDERS AND DECREES. 

A. APPEALABILITY AS DEPEND- 
ENT ON FINALITY OF DE- 
CISIONS. 

1. In Generai 

A writ of error does not lie in an 
action at law until there has been a 
final order lor judgment in the cause. 
Salem Loan, etc., Co. v, Kelsey, 115 
Va. 382, *79 S. E. 329; Brown v. Caro- 
lina, etq.,R. Ca m^ Va. 597, 83 S. E. 
98 f. 

Proceedings by writ of error or ap- 
peal are for the correction of errors 
in decrees or judgments aleady en- 
tered. State v, Moore. 77 W. Va. 325, 
87 S. E. 367; Ritchie County Bank v. 
Bee, 60 W. Va. 386. 389, .&5 S. E. 380. 

In the absence of special statutory 
provision to the contrary, the jurisdic- 
tion of the trial court must cease be- 
fore the jurisdiction of the appellate 
court accrues. Allison v. Wood, 104 
Va. 765, 768, 52 S. E. 559. 

Final Judgment Decree or Order in 
Any Civil Case,— Vav Code 1019, § 
6336. 

2. What Are Final Judgments and De- 
crees "within Role. 

See post, "Applications of Rule in 
Particular Instances," III, A, 3; "In- 
terlocutory Decrees," <lll, B. 

Definition A final decree is one 



Appeal and Error 



227 



which disposes of the whole subject, 
gives all the irelief that was contem- 
plated, provides with reasonable com- 
pleteness for giving effect to the sen- 
tence, and leaves nothing to be done 
in the cause save to superintend 
ministerially the execution of the de- 
cree. Richardson v. Gardner, 128 Va. 
676, 103 S. IE. 225; Salem Loan, etc., 
Co. V. Kelsey, 115 Va. 382, 79 S. E. 
329. See Richmond v. Richmond, 62 
W. Va. 206, 214, 57 ;S. E. 736; StuU v. 
Harvey, 112 Va. 816, 72 S. E. 701. 

Refusing cr Granting Relief Sought. 

— A decree is final so as ito be appeal- 
able when it either refuses or grants 
the relief sought by the party com- 
plaining. Jones V. Buckingham Slate 
Co.. 116 Va. 120, 81 S. E. 28. 

Final Determination of Rights of 

Parties. — A judgment in an action is 
final when it is a termination of the 
particular lacttion or suit, although at 
is not a final determination of the 
rights of the parties. Brown v. Caro- 
lina, etc., R. Co., 1116 Va. 597, 83 S. E. 
981. 

DifiBculty in Cases of Decrees in 

Equity.— Hill v. Cronin, 56 W. Va. 174, 
179, 49 S. E. 132. ' 

Adjudicating Princ4>les of Cause. — 

.^n interlocutory decree may adjudicate 
the principles of a cause, as well as a 
final decree, hence, complete evidence 
of finality is not afforded by the adju- 
dication of such principles. Richard- 
son V. Gardner, 128 Va, 676, 105 S. E. 
225. See post, "Decree or Order Ad- 
judicating Principles of Cause," III, 
B, 3, e. 

Same— Widiin Statute Relating to 
Filing Answer. — ^"As the decree is un- 
donbtedly )ont settling the principles of 
the cause, it is final within the mean- 
ing of the terms of § 53 of chapter 125 
of the W. Va. Code, permitting the 
defendant to file his answer at any 
time before final decree. This conclu- 
sion is the logical result of principles 
declared in Barbour v. Tompkins, 58 
VV. Va. 572, 52 S. E. 707." Ash v. 



Lynch, 72 W. Va. 238, 240, -78 S E. 
365. 

Adjudication on .IMerits. — "To be 

final, in the sense that it is appealable, 
a decree must be entered on the 
merits, and adjudicate the matters in 
controversy between the parties to the 
cause. Core v. Strickler, 24 W. Va. 
689; Hill V, Als, 27 W. Va. 215." 
Harper v. South Penn Oil Co., 77 
W. Va. 294, 87 S. E. 483, 487. 

Same — Exception to jRole. — ''A well 
recognized exception to the general 
rule is where the judgment abating or 
dismissing the suit <is upon grounds 
precluding further proceedings, as 
for want of jurisdiction, etc. In such 
cases the judgment or order is appeal- 
able. Underwood Typewititcir Co. v. 
Piggott, 60 W. Va. 532, 55 S. IE. 664; 
Carson v. Phoenix Ins. Co., 41 W. Va, 
136, 23 S. E. 552." Armen trout v. 
Lambert, )79 W. Va. 602, 91 S. E. 452. 

Determination of Substantial Merits 
of Controversy. — A (decree in chancery 
cause, such as will support an appeal, 
is not necessarily the last decree ren- 
dered, by which all proceedings in the 
cause are 'terminated, and nothing is 
left ooen for the future judgment or 
action of the court; but it is a decree 
which determines the substantial merits 
of the controversy — all the requisites 
of the case — though there may remain 
a reference to be had, or the adjustment 
of. some incidental or dependent mat- 
ter. Hill V. Cronin. 156 W. Va. 174, 49 
S. E. 132. 

Finally Determinative of Controversy 
to Aggrievemcnt of Complainant.— "A 
reviewable final judgment or decree 
must be finally determinative of the 
controversy to the aggrievement of 
the person claiming review." Ritch'e 
County Bank ii'. Bee, 60 W. Va. 386. 
387, 55 S. E. 380. 

If it appears upon ' the face of the 
judgment that further action in liie 
cause is necessary to gave \complete\y 
the relief contemplated by the court, 
then the judgment is not final. Salem 



228 



Appeal and Error 



Loan, etc., Co. v. Kelsey, 115 Va. 382, 
79 S. E. 329. See Stull v. Harvey. 112 
Va. 816, 72 S. IE. 701. 

A decree or judgment to be final 
must be complete and certain in itself, 

and not a recital or ^memorandum. It 
must show intrinsically and distinctly 
and not linferentially that the matter 
has been adjudicated. It must contain 
the sentence of the law. Pickens v, 
Daniels, '5« W. Va. 327, 331, 52 S. E. 
215; Hill if. Cronin, 56 W. Va. 174, 49 
S. E. 132; .Ritchie County Bank v. Bee, 
60 W. Va. 386, 387, 55 S. E. 380. 

In Proceeding for Enforcement of 
Forfeitures.— Va. Code 1919, § 3376. 

Final as to One Party Not as to An- 
other. — A decree may be final as to 
one party and not as to another, de- 
pending upon the circumstances of the 
case. Jones T. Buckingham Slate Co., 
116 Va. 120, 81 S. E. 28. 

Final Order Not Necessarily Last 
One. — "While in its strict sense a final 
order is the last or concluding order 
in a case, in the popular sense, and in 
the [sense in which it is most used by 
the lawmakers, as well as by the legal 
profession, it is ordinarily considered 
to be isuch an order as fis subject to re- 
view by appeal, writ of error, or other 
appellate process, and our statutes 
providing tfor appellate process in other 
cases do not in all instances contem- 
plate the last or concluding order lin 
the tase as the only one subject to 
review by such process. We are of 
the opinion that the Legislature in the 
use of this term meant to cover all 
such orders as change the positiion of 
the parties, as take from one and give 
to the other something that he was 
not entitled to, and could not receive 
before." Charleston v. Public Service 
Comm., 83 W;t Va. 718^ 722, 919 IS. 
E. 63. 

3. Applications of Rule in Particular 
Instances. 

See (post, JUDGMENTS AND DE- 
CREES. 



a. Decisions Hdd Final and Appeal- 
able. 
Order Referring Case to Comnus- 
sioner. — ^A decree construing a deed, 
and adjudicating that the widow of the 
grantor took and held thereunder the 
exclusive use and enjoyment of per- 
sonal estate for her natural life, and 
that (Upon her death the plaintiff as 
surviving grantee was entitled in re- 
mainder to said property and had the 
exclusive right ito the possession and 
enjoyment theireof, and referring the 
cause to a commissioner to report upon 
the necessary facts to carry such de- 
cree into execution is an appealable 
decree. Roush v. Hyre, 62 W. Va. 
120, )57 S. E. 368. 

Order in Enunent Domain Proceed- 
ings. — In a proceeding to condemn 
land for a city street (there is an order 
adjudicating that the city has a right 
to condemn, and appointing commis- 
sioners to assess compensation for the 
land, and an order filing the report of 
the commissioners and allowing the 
money to be paid Ento court, and it is 
paid in. These orders are final in char- 
acter, so as tto give jurisdiction for a 
writ of error and supersedeas where 
the right to take is in Controversy, but 
not where the only question is the 
amount of (compensation. Bluefield v. 
Bailey, 62 W. Va. 304, 57 S. !E. 805. 
overruling Wheeling, etc., R, Co. v. 
Atkinson, 53 W. Va. 539, 44 S. E. 773, 
and Pack h. Chesapeake, etc., R. Co., 
5 W. Va. 118. 

Order Quashing or Abating for Re- 
fusing to Quash or Abate an Attach- 
ment. — "Subsection 8 of § U, ch. 135, of 
the West Virginia Code, provides that 
a party to a controversy in any cir- 
cuit court may obtain an appeal in any 
case where there is a judgment or or- 
der quashing or abating or refusing to 
quash or abate an attachment." El- 
kins Nat. Bank v. Simmons, 57 W. Va. 
1, 4, 49 S. E. 893. 

An order, refusing to admit to pro- 
bate a paper offered as a will is a final 
judgment to which |a writ of error lies. 



Appeal and Error 



although no provtsnon is made for the 
costs of the proceedings in which the 
mil is offered. Wallen v. Wallen, 107 
Va. 131, «7 'S. E. S96, Va. Code 1919, 
S 6336. 

A judgment inproperly abating an 
action upon a ground which precludes 
further proceedings, is appealable. Un- 
derwood Typewriter Co. v. Piggott, 60 

W. Va. *33, 55 IS. E. 664. 

Judgment as to Set-Offt. — In an 

action by a plaintiff against two de- 
fendants where one of the defendants 
iiles a plea of set-oSs in excess of the 
plaintiff's demand, and the other de- 
fendant -files no plea, if the court, with- 
out the intervention of jury, gives 
judgment in favor of the defendant 
pleading for the excess of his set-offs 
over and above the plaintiff's demand 
and for his costs, this is a final judg- 
ment, disposing of the case as to both 
defendants and to it a writ of error 
lies. Stimmel v. Benthall. lOB Va. 141. 
60 S. E. 765. 

Divorce Procecdinga.^ — A decree of 
divorce a mensa or a vinculo, based 
upon some ground iauthoriied by S§ 5 
and 6, of chapter 84, Code 1906. alleged 
in the fa^l and supported bo' proof, 
pronounced after due process duly 
served, and default of appearance by 
defendant, land > which by ^ S of said 
chapter, can not be upon bill taken for 
confessed, can not at a subsequent 
term of the court be set aside upon 
motion by defendant pursuant to § 5. 
chapter 134, Code 1906. Such decree 
is final, and so far as based bn the facts 
alleged and proven can not be re- 
examined except upon appeal to this 
court by the party claiming to be ex- 
amined except upon appeal to this 
court by the party claiming to be ag- 
grieved thereby. Nor may such a de- 
cree be set aside after the term at 
which it was pronounced upon a peti- 
tion or bill by defendant lin the same 
court on the ground that the evidence 
on which the "same was predicated is 
false or insuffioicnt. Chapman v. 
Chapman, 70 W. Va. S22, 74 S. E. 861. 



Dismisul of AppeaL- 
peal from a Judgment 
county court appointing 
appoint an administrato 
lowed by and dockete 
court, and the person 
r^ght of appeal, the ord 
thereof by the circuit 
providently awarded, wi! 
a 6nal judgment, from ^ 
error will lie to the 
Butcher ki. Kunst, 65 \ 
S. E. 967. 

Decree Dismiidng Ca 
to Diligently Proaecute. 
an appeal may be taken 
dismissing a cause, ove' 
of the plaintiff, for alleg 
igence in the prosecuti 
such decree is a final d 
the proceeding jfor all 
spective of his right, if i 
another to obtain th< 
otherwise the court raij 
continue to dismiss 1 
thereby effectually deny 
to redress his grievan 
Smith, 97 W. Va. 112, 

b. Decisions (Held Not 
iq)pealable. 

See post, "Interloci 
HI, B. 

Reference — A decree 
the amount of |the fee < 
ployed by a trustee, bi 
questions at issue betW' 
to a master for' repor 
Stull V. JHarvey, Iia ■> 
E. 701. 

Decree Ascertaining 
debtedneas On^^ — A ' 
ascertaining a person: 
from a defendant to thi 
not decreeing payment I 
fixing a lien therefor or 
viding for the payment 
final or appealable. Pi 
iels. 58 W. Va. 837, 52 

Order Sustaining Dei 
ceptionv. — An order me 
a demurrer to a bill in 



230 



Appeal and Errob 



missing the bill, is not appealable. Bos- 
worth V. Wilson, 57 W. 'Va. 80, 49 S. 
E. 942; Gulland v. Gulland, 81 W. Va. 
487, 94 IS. E. 943. 

An order in a chancery cause, svor 
taining exceptions to an answer and 

striking from it only evidential matter, 
without eliminating the allegations of 
defensive rights or denials of contro- 
verted averments of the bill, is not ap- 
pealable. Baltimore, etc.. R. Co. v. 
Wheeling Tract. Co., 70 W. Va. 33, 
73 S. E. 53. 

Judgment Overruling Demurrer. — 
Even if the supreme court had appel- 
late jurisdiction to hear an appeal from 
a judgment of the circuit court over- 
ruling a demurrer which an inferior 
court sustained, there is no final judg- 
ment. A writ of error does not lie to 
a judgment imerely overruling a de- 
murrer. Parsons v. Snider, 42 W. Va. 
517, 26 S. E. 285; White t'. Chesapeake, 
e'c, R. Co,, 26 W. Va. 800; Ritchie 
County iBank r. County Court, 65 W. 
Va. 208, 209, 63 S. E. 1098. 

Order Overruling Exceptions to An- 
swer. — An order overruling exceptions 
to an answer for insufficiency is not a 
final decree or order, as that term is 
used in § 3454, Code of 1904, allowing 
appeals from such decrees or orders 
Johnson v. Mundy, 126 Va. 730, 97 S. 
E. 564. 

Setting Aside Verdict and Awarding 
New Trial. — A writ of error does not 
lie from the supreme court to the judg- 
ment or order of the circuit court in 
a criminal case setting aside the ver- 
dict of the jury and awarding a new 
trial. Reaffirming State v. Bluefield 
Drug Co., 41 ]W. Va. 638, 24 S. E. 
649: State v. Martin, 67 W. Va. 544, 68 
S. E. 270. 

The supreme court has no jurisdic- 
tion to award a writ of »error to a judg- 
ment of a circuit court setting aside a 
final judgment in egectmenti, and 
awarding a new trial to a defendant 
who had not appeared or been served 
with process. The judgment award- 
ing a new trial is not a final judgment 



within the meaning of § 8454 of the 
Code allowing a writ of error from this 
court. Smiley v. Provident Life, etc., 
Co., 106 Va. 787, 56 S. E. 728. 

Refusing New TriaL — A judgment or 
order overruling a motion to set aside 
a verdict for defendant, |^nd refusing 
plaintiff a new trial, is not such final 
judgment. The judgment to be final, 
in such a case, must be a judgment 
nil capiat. Barker r. iStephenson, 67 
W. Va. 490, 68 S. E. 113. 

Judgment for Costs. — There is no 
jurisdiction for a writ of error when 
there is a verdict for defendants and 
only a judgment for their costs. Ep- 
stein r. Totten, 63 W. Va. 602, 60 S. 
E. 614; DeArmit v. Whitmer, 63 W. 
Va. 300, 302, 60 S. E. 13€; Armen- 
trout V. Lambert, 79 W. Va. 602. 91 
S. E. 452; Ritchie County Bank v. Bee, 
60 W. Va. 386, 55 S. E. 380. 

In such a case the appellate court 
has not jurisdiction to extend the judg- 
ment into ta final judgment in favor of 
the defendant in brder to pass upon the 
alleged errors of the court in the trial 
of the case. Ritchie County Bank v. 
Betf, 60 W. Va. 386, 388, 55 S. E. 380. 

If, 'in the trial of an action upon a 
demurrer to evidence which is sus- 
tained, the court does not render a 
judgment of nil capiat, but only for 
costs, there is no final judgment, and 
the supreme court is without jurisdic- 
tion to review the case. Bower v, Vir- 
ginian R. Co., 68 W. Va. 629. 70 S. E. 
369. See Kirk v. Camden Interstate 
R. Co., 66 W. Va. 486, 487, 66 S. E. 
683; Barker v. Stephenson, 67 W. Va. 
490, l68 S. E. 113; Myers v. Carnahan, 
69 W. Va. 136, 71 S. E. 15. 

Judgment in Revenue Cases.^ — A writ 
of error does not lie from the West 
Virginia supreme court at the instance 
of the state, to an order of a circuit 
court overruling a motion by the state 
to set aside a verdict of "not guilty*' 
by a jury in a criminal case, for the 
violation of a law relating to the rev- 
enue, when there has been no final 
judgment on the verdict. In such case 



Appeal and Error 



231 



the writ of error allowed will be dis- 
missed as improvidently awarded. State 
V. Peyton, 58 W. Va. (380, 52 S. E. 393. 

A nonsuit is not a final judgment, as 
regards appealability, ;and no writ of 
error lies to it. Marcus & Sons v. Mc- 
Clure, 63 W. !Va. 215, 59 S. E. 1055. 

See Brown v. Carolina, etc., R. Co., 
116 Va. 597, 83 'S. E. 981, wherein the 
court said: "In the case cited, in which 
there was a compulsory nonsuit, it 
was held that while a new action could 
be brought for Ithe same cause of ac- 
tion, it was final disposition ;-of the 
particular case, and that the party 
against whom the judgment of nonsuit 
was entered was entitled to a writ of 
error. Van DeVier r. Stanton, 1 
Cowan (N. Y.) 84." 

Granting Injunction^ — No appeal 
lies from an order granting an injunc- 
tion. A decree in a chancery cause not 
regularly matured for hearing, com- 
manding certain things to be done and 
inhibiting the doing of others, all of 
which are dependent upon the same 
right and title, designating the pro- 
hibitive part only as an injunction, and 
containing a paragraph making ^'the 
injunction" conditional as to its effect, 
upon the giving !of a bond, is interloc- 
utory and not appealable. Clark v. 
Hazlett, 72 W. Va. 21. rr7 S. E. 327. 
See Wheeling v. Chesapeake, etc., Tel. 
Co., 81 W. Va. 438, 94 S. E. 511. 

Order Refusing to Appoint Receiver. 
—The refusal to appoint a receiver is 
not an appealable order. Stafford v. 
Jones, 65 W. Va. 667, 64 S. E. 723. 
Bartlett v. Boyles, 66 W. Va. 327, 60 
S. E. 474; George v. Brown, 84 W. Va. 
359. 99 S. E. 509. 

Judgment as to Two of Three Notes. 
— Where an action is brought upon 
three notes and there is a gen- 
eral verdict for the defendant!, an 
order made by the trial court setting 
aside the verdict as to two of the notes 
and awarding a kiew trial as to them, 
but refusing to set it aside as to the 
other note, and directing that the 
plaintiff take nothing by his action as 



to that note, and that the defendant re- 
cover his costs, is not a final order or 
judgment to which a writ of error wiill 
lie. Salem Loan, .eftc, Co. v. Kelsey, 
115 Va. i382, 79 S. E. 329. 

Condemnation Proceedings. — To be 
final and, therefore, appealable, orders 
in condemnation proceedings, pursu- 
ant (to Ch. 42, Code 1906, must adjudge 
right to appropriate to public use, as- 
certain and fix compensation upon re- 
port ^>f commissioner and accept pay- 
ment thereof by petitioner. Otherwise, 
they are ineffectual to change posses- 
sion or pass title. Panhandle Tract. 
Co. V. Schenk, 73 W. Va. 226, 80 S. 
E. 345. 

Prior to the entry of such orders 
and payment of compensation a writ 
of error and supersedeas will not lie, 
and if granted will be dismissed as im- 
providently awarded. Panhandle Tract; 
Co. V. jSchenk, 73 W. Va. 226, 80 S. 
E. 345. ' 

Judgment in Eminent Domain Pro- 
ceedings. — In a proceeding under the 
statute authorizing a railroad company 
to take and appropriate land for its 
railroad purposes by paying just com- 
pensation therefor and damages to the 
residue of the land, an order of the 
court adjudicating the fact that the 
company has a right to so condemn the 
land proposed to be taken and appoint- 
ing commissioners to ascertain such 
compensation and damages is not final 
and ia writ of error thereto will not He. 
White Oak R. Co. v. Gordon, 61 W. 
Va. 519, 56 S. E. |837. 

Decree Fixing Liability for Rent. — 
.A. decree fixing upon a party liability 
tor rents is interlocutory until the 
amount of the rent is ascertained. The 
amount may not be sufficient to give 
this court jurisdiction. Goodloe v. 
Woods, 115 Va. 540, 80 S. E. 108. 

A decree ordering sale of land, but 
not directing application of proceeds 
held interlocutory and "not final, though 
it adjudicated the principles of the 
cause. Richardson v, Gardner, 128 Va. 
076, 105 S. E. 225. 



232 



Appeal and Error 



Provisional Decree Not Appealable. 

—Ordinarily, a cestui que trust inter- 
ested in the purpose and subject matter 
of a suit in equity can not be omitted 
as a party, on the theory of represen- 
tation by his trustee, and certainly not 
in instances of controversy between 
them as to the subject matter; where- 
fore reservation of such a controversy 
in a decree determining the same issue 
between the trustee and other parties to 
the suit makes such decree provisional 
and unappealable. Arnold v. Mylius. 
85 W. Va. 123, 101 S. E. 78. 

Judgment Remanding Cause Not Fi- 
nal. — Ritchie County Bank v. County 
Court, 65 W. Va. 208, 63 S. E. 1098; 
Steinman v. Clinchfield Coal Corp., 
121 Va. 611, 93 S. E. 684. 

B. INTERLOCUTORY DECREES. 

1. In General. 

See ante, "Decisions Held Not Final 
and Unappealable," HI, A, 3, b. 

The appellate court in ithe absence of 
statute has no jurisdiction of an appeal 
from an interlocutory decree. Bos- 
worth r. Wilson, 57 W. Va. 80, 81, 49 
S. E. 942; Hobson v. Hobson, 105 Va. 
394, 400, 53 S. E. 964; Smiley v. Prov- 
ident Life, etc., )Co., 106 Va. 787, 56 
S. E. 738; Va. Acts 1920, p. 416: Pol- 
lards Code 1920, p. 308, amending Code 
1919, § 6348. 

Every decree which leaves anything 
to be done by <the court in the cause is 
interlocutory as between the parties 
remaining in court. Stull v. Harvey, 
112 Va. 816, 72 S. E. 701. 

Provisional orders and decrees not 
final in character, but reserving for fu- 
ture adjudication matters in litigation 
are not appealable. Benedum v. First 
Citizens' Bank, 72 W. Va. 124, 78 S. 
E. 656. 

A decree in a suit for partition of 
land, determining a controversy therein 
concerning the location, identity, bound- 
aries and quantity of the land, as 
between pome of the parties, and ex- 
pressly reserving disposition thereof as 
to others, is provisional and interloc- 



utory only as to the findings and adju- 
dications made by it and not appeal- 
able. Arnold v. Mylius, S5 W. Va. 
123, 101 S. E. 78. 

A decree, prematurely entered, pend- 
ing exceptions to a commissioner's re- 
port undisposed of, and |which does not 
finally adjudicate the controversies 
between the parties to the cause is in- 
terlocutory, and not appealable. Ker- 
foot V. Dandridge, |69 W. Va. 337, 71 
S. E. 396. 

A m^re expression |o£ an opinion in 
an interlocutory order, stating reasons 
for rulings on exceptions to an an- 
swer, not replied to, and not purport- 
ing ^o settle all the principles of the 
cause, is not an appealable order. 
Harper v. South Penn Oil Co., m W. 
Va. 294, 87 S. E. 483. 

Overruling Motion to Quash Attach- 
ment. — Under subsection 8 of § 1 of 
chapter 135 of the West Virginia Code 
1919, a decree overruling a niotion to 
quash an attachment is an interlocu- 
tory but appealable decree. Elkins 
Nat. Bank v. Simmons, 57 W. Va. l, 
49 S. E. |893. 

3. Statutory Provisions. 

a. General Statement of Provisions. 
Virginia Statute.— Va. Code 1919, § 

6330. 

b. Decree or Order as to Dissolution of 

Injunctions. 

Appeal Allowed from Decree or Or- 
der Dissolving Injunction. — The stat- 
ute allows an appeal from a decree or 
order dissolving kn injunction or over- 
ruling a motion to dissolve it. Va. 
Code 1919, § 6336; W. Va. Code tl906. 
ch. 135, § 1. Clark v. Hazlett, 72 W. 
Va. 21, 77 S. "E. 327. Wheeling v. Ches- 
apeake, etc., Tel. Co., 81 W. Va. 438, 
440, 94 S. E. 511. 

The right of appeal given by the Va. 
Code from a final decree, or from a de- 
cree adjudicating the principles of a 
cause, is the same in a case for equita- 
ble relief by injunction as in ather eq- 
uity cases. French /v. Chapin-Sacks 
Mfg. Co., 118 Va. 117, 86 S. E. 842. 



Appeal and Error 



233 



See )post, "Decree or Order Adjudicat- 
ing Principles of Cause," III, B, 3, e. 

c. Decree or Order Requiring lAoney 

to Be Paid. 

Appeal Allowed. — Va. Code 1919, § 
6336. 

d. Decree or Order Requiring Posses- 

sion or Title of Property to Be 
Changed. 

Appeal Allowed.— Va. Code 1919, § 
6336; W. Va. Code 1906, § 4038. 
' A decree adjudging, ordering and 
decreeing )that the plaintiff do take and 
hold the land mentioned and described 
in the bill for and during his natural 
life, and referring the cause to ,a com- 
missioner to take and report an ac- 
count of rents, issues and profits, taxes 
and permanent improvements made on 
the property, pronounced on a bill, de- 
manding rents, issues and profits, as 
well as title and possession of the land, 
is appealable as one changing title to 
real estate. Beverlin v. Casto, 62 W. 
Va. 158, 57 S. E. 411. 

An order appointing a {receiver has 
been held to be appealable on the 
ground that it falls under the W. Va. 
statute allowing an appeal from an or- 
der requiring the possession or title of 
property to be changed. Ruffner v. 
Mairs, 33 W. Va. i655, 11 S. E. 5; Staf- 
ford V. Jones, 65 W. Va. 567, 572, 64 
S. ^E. 723; Davidson v. Davidson, 70 
W. Va. 203, 73 S. E. 715; George v. 
Brown, 84 W. Va. 059, 367, 99 S. E. 
509; Baltimore Bargain House v. St. 
Clair, 58 W. Va. J555, 52 S. E. 660; Vir- 
ginia Passengeii etc., Co*, v. Fisher, 
104 Va. 131. 51 'S. E. 198. 

And, where the property is in the 
hands of receivers of another court, a 
direction to the receiver to intervene 
in that court and apply for the posses- 
sion, and to take and receive the prop- 
erty from the receivers of that court is 
a sufficient change in possession and 
control to warrant an appeal to this 
court. Virginia "Passenger, etc., Co. v. 
Fisher. 104 Va. 121. 51 S. E. 198. See 



Whyel V, Jane iLew Coal, etc., Co., 67 
W. Va. 651, 69 S. E. 192. 

Order (Refusing to Appoint Receiver. 
— See ante, "Decisions Held Not Final 
and Unappealable," HI, A, 3, b. 

e. :Decree or Order Adjudicating Prin- 
ciples of Cause. 

See ante, "Decisions Held Not Final 
and Unappealable," HI, A/ 3, b. 

A decree "adjudicating the principles 
of a cause" is appealable. Va. Code 
1919, § ^336; W. Va. Code, ch. 135, § 
1, ch. 7; Armstrong v, Ross, 56 W. 
Va. 16, 17, 48 S. E. 745; Hill v. Cro- 
nin, 56 W. Va. 174, 49 S. E. 132; Bar- 
bour V. Tompkins, 58 IW. Va. 572, 581, 
52 S. E. 707; Richmond v. Richmond, 
62 W. Va. 206, 217, 57 S. E. 736; 
Harper v. South Penn Oil Co., 77 W. 
Va. 294, 87 :S. E. 483, 487. 

But it must settle all the principles 
of the cause), leaving nothing to be 
done except subsidiary and sequen- 
tial matters, necessary to the ffull exe- 
cution of what is thereby decreed. 
Hill V. Cronin, 56 W. Va. 174, 49 S. E. 
132; Barbour v, Tompkins, 58 W. Va. 
572, 581, 52 S. E. 707; Beverlin v. 
Casto, 62 .W. Va. 158, 161, 57 S. E. 
411; Richmond v. Richmond!, 62 W. 
Va. 206, 212, 57 S. E. 736; Harper v. 
South Penn Oil Co., 77 W. Va. (294, 87 
S. E. 483. 

An order of reference, founded on 
the expressed opinion of the judge, 
without adjudicating the principles in- 
volved, is not appealable. Armstrong 
V. Ross, 56 IW. Va. 16, 48 S. E. 745, 
approved in Hill v. Cronin, 56 W. Va. 
174, 182, 49 S. E. 132; Rainey v. Free- 
port Smokeless Coal, etc., Co., 58 W. 
Va. 381, 387, 52 S. E. 473; Beverlin v. 
Casto, 62 W. Va. 1.58, 161, 57 S. E. 
411; Pickens v, Daniels, 58 W. Va. 327, 
331, 52 S. E. 215. 

The statute seems to be little more 
than a declaration of what the court 
had previously held. The purpose of 
this rule is to prevent frequent and suc- 
cessive appeals in the isame case, to 
the end that delay and confusion may 



1 



234 



Appeal and Error 



be avoided. Barbour ir. Tompkins, 58 
W. Va. 572, 581, 152 S. E. 707; Rich- 
mond V. Richmond, 62 W. Va. 206, 217, 
57 S. E. 736. 

Troublesome Question. — Whether a 
decree is appealable as adjudicating the 
principles of the cause has often been 
a troublesome question, depending for 
solution in each case upon the nature 
and character of the decree. Richmond 
r. Richmond, 62 W. Va. 206, 212, 57 
S. E. 736. 

Determination as to All Parties in 
Interest. — To be appealable as one set- 
tling the principles of a cause, *a decree 
must not only determine all of the 
governing and controlling issues 
therein, but must also determine them 
as to all of the parties whose interests 
in such issues have been asserted in 
the cause by pleadings. Arnold r. My- 
lius, !85 W. Va. 123, 101 S. E. 78. 

Decree Conclusive of Every Matter 
Decided. — A decree that is appealable 
under clause 7 of § 1 of chapter 135 of 
the West Virginia Code, as one adjudi- 
cating the principles bf a cause, or that 
is final in such sense as to make it re- 
viewable by bill of review, is conclu- 
sive of every matter decided by it, and 
every matter which, by the rules of 
equity practice, the parties were bound 
to set up in reference to it, before sub- 
mitting it for adjudication, and can not 
be altered or disturbed except by ap- 
peal or bill of review, within the re- 
spective periods allowed therefor by 
the statutes. Barbour v, Tompkins, 58 
W. Va. 572, 52 S. E. 707. 

Decrees Held Appealable. — A decree 
in a suit by an executor against de- 
visees to convene creditors and admin- 
ister the assets for their payment made 
on a report of debts by a commis- 
sioner, which decrees debts against 
the estate and subjects its lands to 
their payment, is appealable. Trail v. 
Trail, 56 W. Va. 594, 49 S. E. 431. 

A decree which settles the principles 
of a cause is clearly appealable, but not 
necessarily final. If a decree does not 
purport to be final, makes no order for 



costs, and shows upon its face that fur- 
ther action "in the cause** is intended, 
and is necessary to give completely the 
relief contemplated by the court, both 
as to the creditors of the judgment 
debtor, who are complainants in the 
cause, and as to the purchasers of the 
real estate sold therein, it is not a final 
decree. In the case in judgment, fur- 
ther action "in the cause" was neces- 
sary in order to decree money to cred- 
itors and to perfect the titles of pur- 
chasers, and hence the defendant had 
the right to file an answer thereto, un- 
der the provisions of § 3275 of the 
Code. Collier v. Seward, 113 Va. 228, 
74 S. E. 155. 

A decree of partition, whether by 
default or after full defense, which ad- 
judges title in the parties, the interests 
they hold and that partition be made 
in the proportion defined by it, and 
leaves nothing to be done except for 
the commissioners appointed, in fur- 
therance of its execution, to divide the 
land in kind if possible, or if not to 
report the fact to the court for decree 
of sale and distribution of the proceeds, 
pdjudicates the principles of the cause 
nnd contains every element necessary 
lo render it appealable. Richmond v. 
Richmond, 62 W. Va. 205, 57 S. E. 
736. 

A suit was brought by a wife for a 
divorce on the ground of desertion and 
incidentally to set aside as fraudulent 
the sale of certain property made by 
the husband «o his brothers. There 
was a preliminary motion to dismiss 
the appeal on the "ground that the de- 
cree appealed from was not final, and 
did tiot adjudicate the principles of the 
cause. It was clear that the decree "was 
not final, as the divorce Iprayed for was 
not granted. The decree, however, 
contained the opinion of the court that 
the "brothers were guilty of no fraud 
in the purchase bf the property from 
the husband, and that the fund to the 
credit of the court arising from the 
proceeds of notes given for the prop- 
erty of the (husband, and should be paid 



Appeal and Error 



235 



over to the wife as alimony, but for an 
interpleader improperly allowed. Held: 
That the decree appealed from 
did adjudicate the principles of the 
cause, «ind was final to support an ap- 
peal. Crowder v, Crowder, 125 Va. 80, 
99 S. E. 746. 

In a suit to determine whether cer- 
tain gifts from a parent to a child 
and her husband were gifts of advance- 
ments, an order overruling plaintiffs 
exceptions to defendants* answer, which 
decided against the plaintiff a very im- 
portant question to him, namely, the 
right to the relief sought by his bill of 
a discovery by the defendants of all 
sums of money or property received 
by them or either of them from the de- 
cedent, determined a rule of evidence by 
which the rights of the parties were to 
be finally worked out, and adjudicated 
a "principle of the cause,*' and hence is 
appealable. Johnson v. Mundy, 123 Va. 
730. 97 S. E. 564. 

Decree Held Not Appealable. — A 

decree on a bill filed by plaintiffs who, 
prima facie, are tenants in common with 
some of the defendants, charging deeds 
from those under whom they claim to 
persons under whom such defendants 
claim, purporting to be absolute con- 
veyances of undivided interests, to 
have been in fact mortgages, and seek- 
ing redemption or reconveyances 
and an accounting for rents and prof- 
its, which adjudicates the conveyances 
to have been absolute, sustains demur- 
rers to the bill, wi*hout dismissal, and 
grants leave to show grounds for an 
accounting, by amendment of the bill, 
is not appealable, because it does not 
se'tle all of the principles of the cause. 
Drake v. O'Brien, 83 W. Va. 678, 99 S. 
E. 280. 

Upon a bill filed by a wife against 
her husband to secure a permanent 
separate maintenance for herself and 
infant daughter, it is premature to al- 
low an appeal from a decree overrul- 
ing defendant's demurrer to the bill, 
and, T^nthout deciding any question in 
the cause, awarding the plaintiff a pen- 



dente lite allovtrance for support, costs 
to date, including attorney's fee, and 
referring the cause to a commissioner 
to ascertain the value of the estate and 
income of the husband, and what would 
be a reasonable allowance to the wife 
for the support of herself and her child, 
and for fees to her consent. The cause 
should be proceeded with further in the 
trial court, and the rights of the parties 
be there adjudicated, before an appeal 
is allowed. The supreme court will not 
undertake to adjudicate the rights of 
the parties in advance of b decision of 
the trial court. Beatty v, Beatty, 105 
Va. 213, l53 S. E. 2. 

A decree of reference founded upon 
the following expressed opinion: "The 
Court is lof opinion that the plaintiff 
and the defendant have mechanics' 
liens against the real estate owned by 
the defendant corporation, the Free- 
port Smokeless Coal and Coking Com- 
pany, as alleged in the plaintiff's bill,** 
but not otherwise adjudicating the 
principles of the cause, is not final or 
appealable. Rainey v. Freeport Smoke- 
less Coal, etc., Co., 58 W. Va. 381, 387, 
52 S. E. 473. 

C. CHARACTER OF PROCEED- 
INGS. 

1. Generally. 

In What Cases Awarded. — Va. Code 
1919, § 6336; Barnes Code, ch. 135, § 1. 

When Prohibited.— Va. Code 1919, § 
r.337. 

Judicial Nature of Decision. — In a 
proceeding under Acts 1914, page 165, 
as amended by Acts 1916, page 672, 
and Acts 1918, "page 402, for an election 
to change the form of government of 
a city to (that known as the "City Man- 
ager Plan," the judge of the circuit 
court acts in ia ministerial capacity, and 
to his finding of facts certified to the 
clerk of the city council no writ of er- 
ror lies. Roanoke v. Elliott, 123 Va. 
393, 96 S. E. 819. 

6. Contempt Proceedings. 

Va. Code 1919, § 4932; Barnes Code, 
ch. 160, § 4. 



236 



Appeal and Error 



Judgments of Sute Corporation 
Commission.— Va. Code 1919, § 3728. 
Disobedience of Orders of Court. — 

No writ of error lies from the supreme 
court of apeals to a judgment of an 
inferior court imposing a fine upon a 
party to a suit for disobedience of its 
orders, and directing his imprisonment 
in jail in default of the payment of said 
fine. Such judgment is not within the 
purview of § 4053, Va. Code (Code 
1919, § 4932), or of any other section 
of the Code. The theory seems to be 
that if the order disobeyed is erro- 
neous, the parties affected should ap- 
peal. If it is right, it should be obeyed. 
Forbes v. State Council, 107 Va. &53, 
60 S. E. 81. 

Where no writ of error lies from the 
supreme court of appeals to the judg- 
ment of an inferior court imposing a 
fine on a party for a contempt of its 
judgment, the decision of the trial 
court that the acts of such party 
amount to a contempt is final, and this 
court will not intimate any opinion 
upon the subject. Forbes v. State 
Council, 107 Va. 853, -60 S. E. 81. 

West Virginia. — A judgment for con- 
tempt of a trial court, consisting of 
disobedience of its judgment, decree or 
order, is not reviewable in the appel- 
late court, if the trial court had juris- 
diction of the cause in which it ren- 
dered, pronounced or entered the vio- 
lated judgment, decree or order, and 
did not exceed its jurisdiction in doing 
so. Fortney Lumber, etc., Co. v, Balti- 
more, etc., R. Co., 73 W. Va. 1, 79 S. 
E. 834. 

But, if such court had not such ju- 
risdiction, or, having it, exceeded its 
powers in entering the judgment, de- 
cree or order, its lack of jurisdiction 
affords ground for appellate jurisdic- 
tion to annul the judgment of con- 
tempt. Fortney Lumber, etc., Co. v, 
Baltimore, etc., R. Co., 73 W. Va. 
1, 79 S. E. 834. 

A writ of error does not lie to a 
judgment of contempt for disobedience 
of a decree requiring payment of ali- 



mony. Smith r. Smithy 81 W. Va. 
761, 95 S. E. 199. 

7. Contested (Election Cases. 

Va. Code 1919, § 268; Barnes W. Va. 
Code, p. 108, ch. 6, § 3. 

Where the vahdity of a law under 
which a local option election was held 
was not called in question in the trial 
court, but the election is sought to be 
set aside on the ground that the 
judges of election put a wrong inter- 
pretation upon the law, and permitted 
persons to vote who were not entitled 
that privilege, the decision of the cir- 
cuit court upon that question is final. 
No constitutional question being raised 
or decided by the circuit court, no ap- 
peal lies. Hulvey v, Roberts, 106 Va. 
189, 55 S. E. 585. 

County Bond Election. — In a pro- 
ceeding to determine the regularity 
and validity of an election to determine 
whether or not county bonds shall be 
issued for permanent road improve- 
ments in the magisterial districts of a 
county^ an appeal lies to this court 
from the final order of a circuit court 
in such controversy. Board v. Spilman, 
113 Va. 391, 74 S. E. 151. 

W. Va. Statute Constitutional.— The 
part of chapter 80 of the acts of the 
legislature of West Virginia of 1901 
which provides for an appeal either 
party, from the final order or decision 
of the county court in an election con- 
est for a county or district office, to 
the circuit court and a trial de novo 
in that court, is constitutional. Wil- 
liamson V. Musick, 60 W. Va. 59, 53 S. 
E. 706. 

8. Criminal Cases. 

Va. Code 1919, § 4931; Barnes Code, 
ch. 160, §§ 1, 3. 

Judgment Requiring <Bail in Misde- 
meanor Cases after Conviction. — Va. 
Code 1919, 4930. 

West Virginia^ — To entitle a party 
indicted for felony to a writ of error 
to the supreme court of appeals under 
the provisions of the West Virginia 
constitution and code, he must either 



Appeal and Error 



237 



have been convicted in the circuit court 
of the offense charged in the indict- 
ment, or he must have been convicted 
thereof 5n some tribunal inferior to the 
circuit court, and the conviction must 
have been affirmed by the circuit court. 
State V. Daugherty, 39 W. Va. 470,' 19 
S. E. 872. 

The appellate court is without juris- 
diction to entertain a writ of error from 
the judgment of the circuit court dis- 
charging a prisoner from prosecution 
under a municipal ordinance for public 
drunkenness and disorderly conduct, 
even though the validity of such ordi- 
nance may b^ involved, Philippi v. 
Kittle, 56 W. Va. 348, 49 S. E. 238. 

11^. Crossing Proceedings. 

In GcncraL— Va. Code 1919, § 2007. 

Proceedings When One Pubfic Serv- 
ice Corporation Desires to Cross the 
Works of Another.— Va. Code 1919, § 

3884. 

Proceedings Where a Public Service 
Corporation Desires or Is Required to 
Cross County Road Above or fielow 
Grade.— Va. Code 1919, § 3885. 

11J4. Dower IProceedings. 

A decree tacitly denying a right of 
dower in land, set up and claimed by 
an answer, amounts to an adjudication 
against such right <and confers right of 
review by an appeal. Sleeth v. Tay- 
lor, 82 W. Va. 1139, 95 S. E. 597. 

14. Habeas Corpus Cases. 

See post, HABEAS CORPUS. 

15. Mandamus Cases. 

Refusing Mandamus. — The pendency 
of a writ of error to the ruling of a 
circuit court dismissing the appeal of 
a railroad company from the refusal 
of the board of supervisors of a county 
to act upon ^ts Ipetition asl^ng the) 
board's consent to a proposed altera- 
tion of a county road, 5s no bar to the 
prosecution of a writ of error to the 
ruling of said circuit court refusing to 
award to said railroad company a man- 
damus to compel the board to take ac- 
tion on said petition. The writ of 



error in the first case is neither an ade- 
quate nor a proper remedy. Carolina, 
etc.. Railway v. Board, 109 Va. 34, 63 
S. E. 412: 

17^. Partition Proceeding. 

A decree rendered 5n a partition suit, 
establishing a lost deed and settling a 
question of disputed title is appealable. 
Wright V. Pittman, 73 W. Va. 81, 79 
S. E. 1091. 

isyi' Proceedings Relating to Dece- 
dent's Estate. 

If, in a suit to ascertain the debts 
of a decedent and subject his real and 
personal 'estate to the payment thereof, 
a final decree has been entered declar- 
ing that the assets of the decedent have 
been exhausted in the payment of his 
debts and that there is nothing in the 
hands of the court or due from the 
purchasers of land sold in the cause to 
which the complainants are entitled, 
the complainants have the tight, if the 
decree is erroneous, and there is really 
money due from 'purchasers, either to 
appeal from the decree, 'or to have the 
cause reinstated on the docket and re- 
viewed within the time prescribed by 
law. Hogg V. Shield, 114 Va. 403, 76 
S. E. 934. 

Order Confirming Ex Parte Settle- 
ment of Executor's Account — No ap- 
peal lies to the supreme court from an 
order of an inferior court merely over- 
ruling exceptions and confirming a 
commissioner's report of an ex parte 
settlement of an executor's account. 
The remedy is by !a bill to surcharge 
and falsify the ex parte settlement. 
Until surcharged and falsified it is to be 
taken as prima facie correct, and an 
order of the 'supreme court affirming 
the order of the inferior court would 
not make it any ^ore final than it was 
before the appeal was taken. Owens 
V. Owens, 109 Va. ^432, 63 S. E. 990. 

19. Quo Warranto Proceedings. 

See post, QUO WARRANTO. 

Order 'Refusing Quo Warranto. — Va. 
Code 1919, § 6336; Barnes Code, ch. 
135, § 1. 



238 



Appeal and Error 



28. Tax Valuation and Proceedings. 

Appeal from State Corporadon Com- 
mission. — See post, "Appeals from Pub- 
lic Service Commissions," XVI, A, 10>4. 

West Virginia.— Barnes Code, p. 332, 
ch. 29, §§ 94, 129. 

There can be no appeal from, or 
writ of error to, a judgment or order 
of a circuit court, rendered or made 
on an appeal from an order of a county 
court, in respect to an erroneous as- 
sessment of property, involving only 
a question of valuation. Ritchie County 
Bank v. County Court, 65 W. Va. 203, 
63 S. E. 10»8. 

There is no jurisdiction in the su- 
preme court of West Virginia for a 
writ of error taken by the state from 
the decision of a circuit court made 
on appeal in a proceeding by a land 
owner to correct a reassessment of 
the value of real estate under said sec- 
tion. McLean v. State, 61 W. Va. 537, 
56 S. E. 884. 

There is no jurisdiction for a writ of 
error in the appellate court from the 
decision of a circuit court made upon 
appeal from a county court in a pro- 
ceeding under Code chapter 29, § 129, 
brought in a county court by a corpo- 
ration to be released from an alleged 
erroneous assessment of its property 
returned for taxation, because of the 
refusal of the county court and as- 
sessor to deduct indebtedness of such 
corporation from its money, credits and 
investments. Bluefield Water Works, 
etc., Co. V. State, 63 W. Va. 480, 60 
S. E. 403. 

Va. Statute — Assessment of Lands 
and Lots.— Va. Code 1919, § 2237. 

Assessment of Personal Pr o pert y . — 
Va. Code 1919, § 2263. 

Assessment Where Land Divided 
Among Several Owners. — Va. Code 
1919, § 2285. 

Proceedings for Assessment of Taxes 
— Property Exempt — Supplement West 
Va. Code 1918, § 941. 

Appeal from Assessment of License 
Tax. — Barnes W. Va. Code, p. 379, ch. 
32, § 42a. 



Assessment of Inheritance and Trans- 
fer Taxes.— Barnes W. Va. Code, p. 
417, ch. 33, § 20. 

Assessment of Tax on Corporation 
by State Corporation Commissioa.— 
Code 1919, p. 3153. • 
SS. Relating to Insuzance Companies. 

Revocation or Suspension of License 
of Insurance Company. — Va. Code 
1919, § 4350; Va. Code 1919, § 4180, 
as amended by Act 1920, p. 22 (Pol- 
lards Code Biennial, § 4180). 

Revocation of License of Fire In- 
surance Company. — Va. Code 1919, § 
430 ;. 

Assessment of Insurance Companies. 

— Va. Code 1919, § 4195. 

Enforcement of Penalties by State 
Corporation Commission ' against In- 
surance Companies. — Va. Code 1919, § 
4234. 

Failure or Refusal of Commissaoner 
of Insurance to Renew License of In- 
surance Company. — Va. Code 1919, § 
4210. 

Refusal of License to Foreign Fra- 
ternal Beneficiary Association. — Va. 

Code 1919, § 4288. 

24. Miscellaneous Proceedings. 

Boundary Proceedings. — Va. Code 

1919, § 5490. 

Mere delay in the execution of a writ 
of inquiry, in an action in which the 
issues were finally made up and tried, 
is not available as ground of error. 
Hubbard i\ Equitable Life Assur. Soc, 
81 W. 'Va. 663, 95 S. E. 811. 

Order Overruling Excepticms to Re- 
port of Commissioner of Accounts* — 

An appeal lies to the Supreme Court 
of Appeals from an order of an inferior 
court overruling exceptions to and con- 
firming a commissioner of account's 
report upon the accounts of a county 
treasurer, • which disallowed credits 
claimed by the treasurer of $893^.78, 
and awarded costs against him. Leach- 
man V. Board, 124 Va. 616, 98 S. E. 666, 
distinguishing Owens z\ Owens, 109 
Va. 432. 63 S. E. 990. 



Appeal and Error 



239 



Judgment Forfeiting C<»porate 
Charter.— Va. Code 1919, § Q831. 
Dissolution of Municipal Corporation. 

—This court has jurisdiction by writ of 
error to review the judgment of a cir- 
cuit court, proceeding according to § 
2 of chap. 47 of the Code of 1918 (Code 
1913 § 2383), annulling its charter and 
dissolving a municipal corporation. 
Houseman v. Ana wait, 85 W. Va. 60, 
100 S. E. 848. 

•The jurisdiction of this court to re- 
view the judgment of the circuit court 
annulling the charter and- dissolving 
the corporation is challenged by the 
petitioners, upon the principles laid 
down in 'In re Town of Union Mines, 
39 W. Va. 179, 19 S. E. 398; Elder v. 
Incorporators, 40 W. Va. 222, 21 S. E. 
738; Bloxton v, McWhorter, 46 W. Va. 
32, 32 S. E. 1004; Summers County 
Court V. Monroe County, 43 W. Va. 
207, 27 S. E. 307; McWhorter ^. Dorr, 
57 W. Va. 608, 50 S. E. S38; Morris v. 
Taylor, 70 W. Va. 618, 74 6. E. 872. 
These decisions support the general 
proposition first affirmed in In re Town 
of Union Mines, that the judgment of 
the circuit court in the exercise of the 
legislative and quasi-judicial authority, 
delegated by said chapter, to incorpo- 
rate towns and villages was not sub- 
ject to the appellate jurisdiction of 
this court.' But the jurisdiction here 
invoked is not to reverse the judgment 
of the circuit court granting the char- 
ter and incorporating the municipality, 
but one annulling the charter and dis- 
solving the corporation, quite a differ- 
ent proposition from any "affirmed in 
the decisions cited." Houseman v, 
Anawalt, 85 W. Va. 60, <61, 100^ S. E. 
848. 

An order setting aside a judgment by 
default, entered upon an inquiry of 
damages, is a subject of review by writ 
of error, under clause 9, § 1, ch. 135, 
W. Va. Code, serial § 4981. Clark v, 
Lee, 76 W. Va. 144, 85 S. 'E. 64. 

Proceedings to Require Corporation 
to Construct Wagonways Where Line 



or Works Passes Through 'Lands of 
Another.— Va. Code 1919, §. 3883. 

Proceedings before State Corpora- 
tion Commission. — See post, "Appeals 
from Public Service Commissions," 
XVI, A, 105^. 

Order Granting or Refusing (Leave 
of City to Erect Dam in Watercourse. 
— Va. Code 1919, | 3060. 

Assessment of Damages to Abutting 
Owners.— Va. Code 1919, § 3038. 

Judgment in Proceedings to Incorpo- 
rate Towns. — Va. Acts 1918, p. 560; 
Pollard's Code Biennial, p. 532. Va. 
Code 1919, § 2884. 

Order of Court Discharging or Re- 
fusing to Discharge Treasurer of 
County or City. — Va. Code 1919, § 



2792. 



Proceedings for the Transition of 
Cities of the Second Class to Cities of 
the First Class^— Va. Code 1919, § 
2912. 

Proceedings for Acquisition of Real 
Estate by County, etc. — Va. Code 1919, 
§ 2709. 

Proceedings for Removal of Public 
Officers.— Va. Code 1919, § 2706. 

Barnes W. Va. Code, p. 409, ch. 
32 A, § 20; Supplement W. Va. Code 
1918, § 1305c. 

Proceedings Relating to Public Serv- 
ice Corporations. — Va. Code 1919, § 
3902. 

Unlawful Entry or Detainer. — Va. 
Code .1919, § 5449. 

Cases under Act Relating to De- 
pendent and Delinquent Children. — 
Barnes Code, ch. 46A, § 30. 

Revocation of License. — Va. Acts 
1918, p. 669; Pollard's Code 1920, p. 
636. 

Offenses at Elections. — Barnes W. 
Va. Code, p. 106, ch. 5, § 8b (19). 

Registration of Voter. — Barnes v. 
Va. Code, p. 89, ch. 3, § 98a (7). 

D. MATTERS OF DISCRETION. 

1. In General. 

The exercise of the discretion of the 
trial court will not be disturbed on 
appeal in the absence of abuse. Pow- 



240 



Appeal and Error 



hatan Lime Co. v. Whetzel, 118 Va. 
161, 86 S. E. 898; Reid v. Medley, 118 
Va. 462, 87 S. E. 616; Sutherland r. 
Wampler, 1119 Va. 800, 89 S. E. 875; 
Bice V. Boothsville Tel. Co.^ 63 W. 
Va. 521, 525, 59 S. E. 601. 

Matters arising in the conduct of a 
trial <are largely in the discretion and 
under the control of the trial judge. 
Chesapeake, etc., R. Co. v. Rowsey, 108 
Va. 632, 62 S. E. 3&3. 

9. Applications of Rule in Particular 
Instances. ' 

a. In GeneraL 

Court's Interpretation of Its Rule. — 

The court prescribing a rule has au- 
thority to interpret and apply it, "where- 
fore its ruling that a postponement of 
a case to a later date than that for 
which it was formerly set for trial does 
i^ot except it from the operation of the 
rule, can not be disturbed by the ap- 
pellate "court. Teter r. George, 86 W. 
Va. 454, 103 S. E. 275. 

Argument of Counsel. — See post, 
ARGUMENTS OF COUNSEL. 

Consolidation of Cases. • — The trial 
court has discretion in the matter of 
consolidating causes, and, to warrant a 
reversal of a decree on this ground, it 
must appear 'that such discretion has 
been misused to the prejudice of the 
party complaining. Castle v. Castle, 
69 f\V. Va. 400. 71 S. E. 385. 

Judicial Sales— Confirmation or Set- 
ting Aside. — Before confirmation the 
rights of the purchaser are inchoate, 
and upon a showing of inadequacy of 
price, or upon an offer of a higher bid, 
properly secured, it is discretionary 
wHth the court whether it will confirm 
the sale or set it aside and direct a re- 
sale. The exercise of this discretion 
depends in large measure upon the j 
facts of each case, ^buse thereof when i 
effecting inequities being subject to re- | 
view by the appellate feourt. Eakin v, 
Eakin. 83 W. Va. 512, 98 S. E. 608. 

RemoTsl bf Fiduciary. — A court is ! 
vested by § 2687 of the Code of 1904 
with a very large discretion in regard 



to the removal of a fiduciary appointed 
by it, and 'while it is a legal discretion, 
to be exercised in a proper case, an 
appellate court ought not to interfere, 
except in a case where manifest injus- 
tice has been done, or where it is plain 
that a proper case has not been made 
for the exercise of the powers which the 
legislature has specially conferred upon 
that court, from which the fiduciary 
derives his authority. Nickels v. Horse- 
ley, 126 Va. 54, 100 S. E. 831. 

Enforcement of Forfeiture. — The dis- 
cretion of the court in relating to the 
enforcement of a forfeiture is a sound 
legal discretion, 'subject to review, and 
the appellate court will reverse the ac- 
tion of the trial court when, in its opin- 
ion, relief has been improperly denied. 
Wheeling, etc., IR. Co. v. Triadelphia, 

58 W. Va. 487, 52 S. E. 499. 
Vacating Unauthorized Judgment be- 
fore Issuing Writ of Prohibition. — The 
rule respecting application to the in- 
ferior court, ^to vacate its unauthorized 
judgment before awarding a writ of 
prohibition, to prevent the enforce- 
ment thereof, is discretionary, and the 
judgment of a circuit court, on review 
in the supreme court of appeals, will 
not be reversed for failure of the cir- 
cuit court to require 'such application 
before awarding the writ. Bice v. 
Boothsville Tel. Co., 62 W. Va. 521, 

59 S. E. 501. 

Allowance of Commissioner's Ac- 
counts. — Where in a suit the accounts 
of a receiver have been audited by a 
commissioner and allowed by the court, 
and the disbursements and expenses of 
the receiver are supported by evidence, 
this court will not interfere therewith, 
unless it clearly appears the discretion 
of the court below has been abused. 
Hulings r. Jones, 63 W. Va. 696, 60 
S. E. 874. 

Ruling on Dismissal or Non-Suit. — 
W. Va. Code 1906, ch. 127. § 11, docs 
not peremptorily require every dis- 
missal or non-suit to be set aside dim- 
ply because the court is asked ^o do 
so. The court has a sound discretion 



Appeal akd Error 



241 



in the premises. Higgs v. Cunning- 
ham, 71 W. Va. 674, 77 S. E. 273. 

Allowing Disintennent of Body of 
Murdered Person. — If a court, in a 
murder prosecution, has power to or- 
der the body of the deceased to be dis- 
interred for examination for evidential 
purposes, it is only ^vhen to do so is 
plainly necessary and essential to the 
justice and fairness of trial, and is a 
matter in the discretion of the court, 
and its refusal to make such order is, 
as a rule, not reviewable as cause for 
reversal. State v. Highland, 71 W. Va. 
87, 76 S. E. 140. 

Allowance of Alimony. — The right 
to fix the amount of alimony rests in 
the sound discretion of the chancellor, 
and this court will not disturb his 
judgment unless he has grossly abused 
such discretion. Henrie v, Henrie, 71 
W. Va. 131, 76 S. E. 837; Reynolds v. 
Reynolds, 72 W. Va. 349, 78 S. E. 360. 
See ante, ALIMONY. 

Joinder in or Withdrawals of De- 
murrers to Evidence. — As in other 
matters pertaining to a trial, wide dis- 
cretion should be accorded the tribal 
court in compelling joinder in or per- 
mitting withdrawals of demurrers to 
the evidence, and such djscrqtionary 
action will not be reviewed unless 
plainly arbitrary or otherwise obvi- 
ously improper. Daniels v. Thacker 
Fuel Co., 79 W. Va. 255, 90 S. E. 
840. 

Granting Permission to ' Remove 
Papers from Bar. — Section 12, ch. 131, 
West Virginia Code, respecting the 
carrying from the bar by the jury of 
depositions or other papers read in 
evidence, leaves the subject in the 
sound discretion of the court; and, 
unless such discretion is clearly abused, 
the action will 'not constitute reversible 
error. Cobb v. Dunlevie, 63 W. Va. 
398, ©0 iS. E. »384. 

b. Evidence. 

There is a vast amount of evidence 
which, in a certain legal sense, is rele- 
vant, but at the same time is so unim- 
portant when compared with better evi- 
— 16 



dence which is easily available as to 
be properly excluded. The admission 
or rejection of such evidence is not 
controlled by any inflexible rule, but 
by !a sound, though undefined, judicial 
discretion, depending upon the circum- 
stances of the particular case, and sub- 
ject to review. Norfolk Southern R. 
Co. V. Fentress, 127 Va. 87, 102 S. E. 
588. ' 

Exclusion of Evidence. — An appel- 
late court will not disturb a verdict 
and judgment, because of the refusal 
of the trial 'court to admit evidence, 
offered after the conclusion of the in- 
troduction of evidence by both plain- 
tiff and defendant, unless it appears 
that the trial court, ^n so doing, abused 
its discretionary powers^ by refusing 
to allow an act in furtherance of sub- 
stantial justice. Webb v. Ritter 60 W. 
Va. 193, l54 S. E. 484. 

Admission of Expert Testimony. — ^The 
qualifications of a witness to testify as 
an expert being largely in the discre- 
tion of the trial court, the admission of 
such testimony will not be reviewed 
unless it clearly appears that the wit- 
ness was not qualified. Virginia Iron, 
etc., Co. V. Tomlinson, 104 Va. 249, 51 
S. E. 362. • 

The application of the res gestae rule 
to a particular case depends upon the 
circumstances of that case, and neces- 
sarily rests at last in every instance 
upon the discretion and judgment of 
the trial court. Such discretion and 
judgment, of course, may be the subject 
of review; but in doubtful cases there 
ought to be and is a presumption in fa- 
vor of the action of the court below. 
Washington-Virginia R. Co. v. Deahl, 
126 Va. 141, 142, 100 S. E. 840. 

The order of introduction of evidence 

lies largely in the discretion of the trial 
court, and its ruling will not be reviewed 
where no prejudice or injury to the 
party objecting is shown. Rust v. 
Reid, 124 Va. 1, 97 S. E. 324; Poca- 
hontas Collieries Co. v. Williams, 105 
Va. 708, 54 S. E. 868; 'Sutherland v. 
Gent, 116 Va. 783, 784, 82 S. E. 713. 



242 



Appeal and Error 



See post, "Examination of Witnesses/' 
III, D, 2, c. 

A judgment of conviction in a crimi- 
nal case is not reversible beca^use the 
trial court exercising a reasonable dis- 
cretion refused to admit evidence of 
the good character of defendant at a 
particular • stage of the trial. State v. 
Edwards, 73 W. Va. 46, 79 S. E. 1005. 

Reopening the case for the introduc- 
tion of evidence is within the discre- 
tion of the trial court and will not be 
reviewed unless such discretion is ex- 
ercised in an arbitrary or obviously im- 
proper manner. Virginia R., etc., Co. 
V, Gorsuch, 120 Va. 655, 91 S. E. 632; 
State V. Littleton, 77 W. Va. '804, 88 S. 
E. 458. 

Illustrations. — In the present case, 
the plaintiff having rested his case, the 
defendant demurred to the evidence, 
after which, but before formal joinder 
in the demurrer, the court permitted the 
plaintiff, over defendant's objection, to 
read a deposition taken but not read 
by the defendant, as provided by § 
3367 of the Code of 18S7, the defendant 
having also introduced further evi- 
dence. After the deposition was read 
the defendant again demurred to the 
evidence. Held, under the circum- 
stances, the defendant being in no re- 
spect prejudiced by the reading of the 
deposition at the time at which it was 
read, there was no reversible error in 
permitting it to be so read. Pocahon- 
tas Collieries Co. v. Williams, 105 Va. 
708, 54 S. E. 868. 

In prosecutions for "the violation of 
the act of 1914, p. 252, relating to catch- 
ing of fish in Rockbridge county, where 
the Commonwealth's attorney had con- 
cluded his opening address to the jury, 
and counsel for defendants was ad- 
dressing the jury and pressing the point 
that the existence of the local law had 
not been legally proved by the records 
of the board of supervisors, and it be- 
ing conceded that the fact of such local 
law had not been proved, it was not 
error for the trial court, over the ob- 
jection of counsel for the defendants, to 



suspend the argument and permit the 
introduction of certain records of the 
board of supervisors to prove the local 
law. The time and order of the intro- 
duction of proof rests largely in the 
discretion of the trial court, and the 
record failed to disclose any reason for 
supposing that the defendants could 
have bettered their condPition if the 
evidence had be/en introduced at an 
earlier stage. ' Burks v. Commonwealth, 
126 Va. 763, 101 S. E. 230. 

c. Examination ^of Witnesses. 

The subject of the examination of 
witnesses lies chiefly in the discretion 
of the court in which the case is tried, 
and its exercise is rarely, if ever, con- 
trolled by the appellate court, but the 
discretion which is vested in the trial 
court is not an ordinary discretion, but 
a sound judicial discretion, and an er- 
roneous exercise of it will be corrected. 
Robertson v. Atlantic, etc., Co., 129 
Va. 494,4106 S. E. 521. 

The rule that an appellate court will 
not interfere with the discretion of the 
trial court in the examination of wit- 
nesses applies more strongly to a case 
where the trial court permitted a wit- 
ness to be recalled than to one where 
such permission was refused, for it is 
exceptional where injury is done by the 
reception of evidence. Robertson r. At- 
lantic, etc., Co., 129 Va. 494, 106 
S. E. 521. 

Much latitude of discretion should 
be allowed the trial court in the matter 
of the examination of witnesses, and 
its ruling will not be reversed merely 
because evidence proper in chief "w^as 
introduced in rebuttal. Jacobs k/. War- 
then, 115 Va. 571, 80 S. E. 113; Dow- 
ler V. Gas, etc., Co., ^1 W. Va. 4^17, 
76 S. E. 845: Smith r. Stanley, 114 
Va. 117, 122, 75 S. E. 742. 

Generally, if a party wishes to cross- 
examine a witness upon matters not 
brought out on his examination in 
chief, he should do so by making the 
witness his own and calling him as 
such during the progress of the case. 



Appeal and Error 



243 



but even if this rule be violated it is 
not ground for reversal unless the trial 
court has abused its discretion in the 
matter. If the objection to evidence 
is as to the time it is offered, the ob- 
jection should so state. Smith v. Stan- 
ley, 114 Va. 117, 75 S. E. 742. 

Leading Questions. — Ordinarily, per- 
mitting a leading q-uestion to be asked 
is no "ground for reversal. Smith i\ 
Stanley, 114 Va. 117, 75 S. E. 742. 

While this court will tiot go so far 
as to say that it will not reverse be- 
cause a leading question has been im- 
properly propounded to a witness 
which was duly excepted to, yet trial 
courts are clothed Svith a large discre- 
tion in such matters which this court 
will not lightly undertake to control, 
ancf, in the cas^ in judgment, there 
does not appear 'to be such prejudicial 
error to the accused as to warrant a 
reversal. Flint v. Commonwealth, 114 
Va. 820, 76 S. E. 308. 

The order of the examination of wit- 
nesses lies chiefly in the discretion of 
the trial court, and its exercise is 
rarely, if ever, to be controlled by an 
appellate court. It will not be reviewed 
where no prejudice or injury to the 
party objecting is shown. Chesapeake, 
etc., R. Co. V, Chapman, 115 Va. 32, 
78 S. E. 631, citing Southern R. Co. 
V. Stockdon, 106 Va. 693, 56 S. E. 713; 
Mclntyre v. Smyth, 108 Va. 736, 62 
S. E. 030. 

Pf.rmitting a witness to be recalled, 
after having refreshed his recollection, 
to correct a mistake in his previous 
testimony as to a date, is not reversible 
error. Dowler v. Gas, etc., Co., 71 W. 
Va. 417, 76 S. E. 845. 

Where a witness has testified to the 
correctness of a paper in evidence, 
and says that he wrote the paper, and 
on cross-examination is asked to re- 
write certain >yords with a view of 
comparison with "the paper purporting 
to have been written by him, and ob- 
jection is made, it Is within the sound 
discretion of the court trying the case 
to determine whether or not under the 



circumstances the experiment shall be 
made, and an appellate court will not 
reverse the judgment of the trial court 
for ^either permitting or refusing the 
experiment to be made, unless it plainly 
appear that he has abused the discre- 
tion. Bond V, National Fire Ins. Co., 
77 W. Va. 736, 88 S. E. 389. 

d. Change of Venue. 

The question of defendant's good 
cause for a change of venue is one of 
fact addressed to the sound discretion 
of the court, and if his ruling thereon 
is prejudicial to the accused, it is cause 
for reversal. State v. Weisengoff, 85 
W. Va. 271, 101 S. E. 450. 

A motion under Code 1904, § 4036, 
for a change of venue on the ground 
of prejudice against accused is ad- 
dressed to the discretion of the trial 
court, and its ruling will not be dis- 
turbed unless it plainly appears that 
the discretion has not been properly 
exercised. Looney v. Commonwealth, 
115 Va. 921, 78 S. E. 625. ' 

e. Continuance. 

See post, CONTINUANCE. 

f. Costs. 

Allowance of Costs. — Costs in trial 
courts are in ihe discretion of those 
courts and their action will not be re- 
versed, except upon a clear showing of 
abuse. Goodloe v. Woods, 115 Va. 540, 
80 S. E. 1^08; Coffman v, Viquesney, 76 
W. Va. 84, 84 S. E. 1069; State v, 
Moore, 77 W. Va. 325, 87 S. E. 367. 

Ordinarily an appeal does not lie 
from a decree for costs only in a chan- 
cery suit; but there are exceptions to 
the rule, turning on the question of 
the discretionary power of the trial 
court, respecting costs. A decree for 
such costs as are discretionary is not 
appealable; but one for costs not in the 
discretion of the court is appealable 
provided the amount thereof is more 
than one hundred dollars. Nutter v. 
Brown, 58 W. Va. 237, 52 S. E. 88. 
See State v. Moore, 77 W. Va. 325; 87 
S E. 367. 



Appeal and Error 



245 



motion will not be reversed unless it is 
made to appear that its discretion has 
been improperly Exercised. Ru*st Vh 
Reid, 124 Va. 1, 97 S. E. 324; Lemons 
V. Harris, 115 Va. 809, 80 S. E. 740. 

View by Jury. — The allowance of a 
view by a jury is peculiarly 'within the 
discretion of the trial court, and its 
refusal will not be ground of reversal, 
unless it is clearly manifest that a view 
was necessary to a just Verdict, and 
that its refusal operated to the injury 
of the tarty asking .it. Bond v. Na- 
tional Fire Ins. Co., 77 W. Va. 736, 
88 S. E. 389; ^tonegap Colliery Co. v, 
Hamilton, 119 Va. 271. 89 S. E. 305; 
Fairview Fruit Co. v. Brydon & Bro., 
85 W. Va. 609, 102 S. E. 231; Lorillard 
Co. V. Clay, 127 Va. 734, 104 S. 'E. 384. 

I Parties. ' 

"As a general rule, except where 
statutes otherwise provide, an order 
overruling or sustaining objections as 
to parties, directing, permitting or re- 
fusing 'amendments as to parties, or 
the substitution or addition of parties, 
is not appealable." Harper v. South 
Penn Oil iCo., 77 W. Va. 294, 87 S. E. 
483, 487. 

j. Pleading. 

Time of Filing. — Trial courts have a 
very large discretion as ^o the time of 
filing and perfecting pleadings, which 
the Supreme Court of Appeals Svill not 
review unless such action is clearly er- 
roneous and harmful. Keister v. Phil- 
ips. 124 Va. 585, 98 S. E. 674; Lorillard 
Co. V. Clay, >127 Va. 734, 104 S. E. 384; 
Thacker v. Hubard, 122 Va. 379, 94 S. 
E. 929; Sutherland i;, Wampler, 119 Va. 
800, 89 S. E. 875. 

^Amendmenta — The rule is well rec- 
ognized, that in granting leave to 
amend a pleading, the matter rests in 
the sound discretion of the court, and, 
where the defendants have no reason- 
able ground to object to the proposed 
amendments, an appellate court will not 
reverse ' the trial court for allowing 
pleadings to be amended, unless it ap- 
pears that the discretion resting in the 



trial court has been abused. Watson 
V. Brunner, 128 Va. 600, 105 S. E. 97. 
The admission of a plea amounting 
to the general issue is a matter within 
the discretion of the trial court, the ex- 
ercise of which generally will not be 
subject to review by the appellate 
court. Sutherland k;. Wampler, 119 Va. 
806, 89 S. E. 875. 

k. New Trial 

« 

The trial court has a discretion when 
a motion for a new trial is made on 
the ground of a statement of a juror 
prior to the trial showing extreme 
prejudice iagainst the accused, subject 
to review by the appellate court, which 
will not be interfered with unless it 
appears that some injustice has been 
done. Allen v. Commonwealth, 122 
Va. 834, 94 S. E. 783. 

As a general rule a stronger case 
must be made in order to justify an 
appellate court in 'disturbing an order 
granting a new trial than where a new 
trial has been refused; the reason 
usually assigned for this rule being 
that the refusal to grant a new trial 
operates ^ final adjudication of the 
rights of the parties, while the grant- 
ing of a new trial simply invites fur- 
ther investigation. Vaughan v. Mayo 
Milling Co., 127 Va. 148, 102 S. E. 597; 
Star Piano Co. v. Brockmeyer, 78 W. 
Va. 780, 90 S. 'E. 338; Henderson v, 
Hazlett, 75 W. Va. 255, 262, 83 S. E. 
907. ' 

This rule in its application must be 
properly confined to cases where the 
evidence is not only conflicting; but 
also against/ the We^ight of the Evi- 
dence, and the evidence is wholly in- 
sufficient to support the verdict. Wil- 
son V. Johnson, 72 W. Va. 742, 79 S. 
E. 734. 

If the affidavits on Which a motion 
for a new trial for after discovered evi- 
dence is based, are rebutted by counter 
affidavits, it is for the court below ex- 
ercising a sound judicial "discretion to 
say whether a new trial should be 
granted, and its 'judgment should not 



246 



Appeal and Error 



be disturbed, except for plain abuse of 
that discretion. Duty v. Chesapeake, 
etc., R. Co., 70 W. Va. 14, 73 S. E. 
331. 

In the absence of the evidence, this 
court can not "reverse the ruling of the 
trial court setting aside a verdict as 
contrary to the law land the evidence. 
Although it appears from the record 
that the sole ground telied on by the 
defendants for setting aside the verdict 
was that the court permitted counsel 
for the plaintiff to refer to a section 
of the Code which had no possible 
bearing on the case; yet, where it does 
not appear what (reasons may have 
controlled the court's action this as- 
signment of error can not be passed 
upon when the evidence in the case is 
not certified. Lemons v. Harris, 115 
Va. 809, 80 S. E. 740. 

Granting New Trial. — When in an 
action -for personal injuries the nature 
and extent of the injuries sustained and 
whether temporary or permanent is 
left in doubt by the evidence, and the 
verdict is large, and possibly exces- 
sive, and it appears that the jury may 
have been misled by too broad an in- 
struction given for plaintiflF, the judg- 
ment 'of the trial court setting aside 
the verdict and awarding the defendant 
a new trial will not be reversed 'on writ 
of error. Cain v. Kanawha Tract, etc., 
Co., 81 W. Va. 631, 95 S. E. 88. 

Where, on a motion to set aside a 
verdict, a conflict of oral testimony of 
witnesses in the presence of the jury 
is not alone involved, but conflicting 
oral testimony is on the one side so 
corroborated by jdocumentary evidence, 
uncontroverted facts and ^circumstances, 
or some of these, as to show that the 
verdict is decidedly against the pre- 
ponderance of the evidence, the court 
may properly set aside the verdict and 
award a new trial. Devericks v. Fair 
Grounds 'Imp. Co., 73 W Va. 174, 80 
S. E. 143. 

In an action for personal injuries the 
amount of damages properly recover- 
able depends largely on whether the 



injuries* are permanent or only tempo- 
rary, and where on the trial of such 
an action the verdict for plaintiff is 
large and time enough has not elapsed 
so as to determine whether such in- 
juries are in fact permanent, and the 
question of the permanency of the in- 
juries is not very well developed by 
the evidence, and the evidence tends 
to show neglect by plaintiff of her in- 
juries, retarding the healing processes, 
this court will not reverse the judg- 
ment of the trial court in awarding de- 
fendant a new trial. Adkinson v. 
Baltimore, etc., R. Co., 75 W. Va. 156, 
S3 S. E. 291. 

Abuse of DiscredcMi in Granting New 
Trial. — In a clear case of abuse of dis- 
cretion in setting aside a verdict and 
awarding a new "trial, this court will re- 
verse the judgment of the lower court 
and correct the error. Henderson v. 
Hazlett, 75 W. Va. 255, 83 S. E. 907. 

New Trial Granted for Error in In- 
structions. — Where the trial court has 
expressly confined its action in grant- 
ing a new trial to error in the instruc- 
tions, its action in granting a new trial 
on this ground "will not be sustained 
by the appellate court, if in fact there 
was no error in the instructions. 
Vaughan v. Mayo Milling Co., 127 Va. 
148, 102 S. E. 597. 

1. Receivers. 

Appointment of Receiver. — The ques- 
tion whether or not a receiver will be 
appointed in a case is addressed to the 
sound discretion of the court under all 
the circumstances, and this discretion 
when exercised will not be interfered 
with on appeal except where the dis- 
cretion has been manifestly abused. 
T.amp V, Homestead Bldg. Ass'n, 62 
W. Va. 56, 57 S. E. 249. 

Compensation of Receiver. — ^The al- 
lowance of compensation to a receiver 
is a matter within the sound discretion 
of the court having the receivership in 
charge, and on appeal the decree of 
allowance will Hot be disturbed unless 
it is plainly unwarranted. Campbell v. 



Appeai. and Error 



247 



Charleston St. R. Co., 73 W. Va. 493, 

80 S. E. 809. 

F. DEFAULT JUDGMENTS AND 

DEGREES. 

Necessity of Application to Lower 
Court.— Where, in a suit against a 
devisee and others to have sold to pay 
liens a greater interest in land than 
was devised to him, codevisees re- 
motely interested therein by executory 
devise over in default, at his death, of 
living children or issue of such chil- 
dren, are made defendants solely for 
the purpose of having said will con- 
strued against their contingent interest 
in said land, and who appear and by 
their demurrer overruled challenge as 
matter of law the right of the plaintiff 
to any relief against them, and on de- 
fault of answer by them final decree 
is pronounced that said devisee took 
by said devise such greater interest, 
and directing a sale thereof to pay said 
liens, such final decree is not a decree 
by default precluding such codevisees 
from an appeal without motion in the 
circuit court to correct the error 
therein against them, provided by § 6, 
ch. 134, Code (W. Va. Code 1906, § 
4037), such error being necessarily in- 
volved in the decree overruling their 
demurrer to the bill. Dent v. Pickens, 
61 W. Va- 488, 58 S. E. 1029. 

Judgment Not Reviewable in Trial 
Couit. — A judgment of the circuit 
court, rendered in his absence, on ap- 
peal by defendant from the judgment 
of a justice against him, after twp 
appearances, and trial before the jus- 
tice, and subsequent appearance and 
continuance obtained on his motion in 
the circuit court, is not a default judg- 
ment within the meaning of § 5, chap. 
134, Code 1906, reviewable on motion 
by the circuit court for errors appar- 
ent, judicial in nature, as provided b'y 
said section; *such error, if any, being 
reviewable only on writ of error to the 
supreme court; and the judgment of a 
circuit court setting aside such judg- 
ment, on motion, at a subsequent term, 
is erroneous, and will be corrected here 



on writ of error. Dadisman v. West 
Virginia, etc., Tel. Co., 69 W. Va. 43, 
70 S. E. 855. 

G. .VOID DECREES. 

An appeal by a non-resident whose 
property has been proceeded against 
by order of publication and sold, with- 
out service of process upon him or ap- 
pearance, doe? not lie from alleged 
void entries and decrees in the pro- 
ceedings, nor from an order dismissing 
a motion to correct, set aside and va- 
cate such entries and decrees, nor from 
erroneous decrees entered in the cause. 
Poland V. Brownfield, 73 W. Va. 270, 
SO S. E. 359. 

The remedy for excesses of author- 
ity and correction of errors in such 
cases, is in the court below on a re- 
hearing or a bill in equity offering to 
do equity, or, if the decrees are void, 
by a collateral proceeding for the re- 
covery of the property sold. Poland 
V Brownfield, 73 W. Va. 270, 80 S. E. 

359. 

* 

H. CONSENT DECREE. 

An indorsement on a decree, "agreed 
to," signed by Counsel for all the par- 
ties to the suit, makes the decree a 
consent decree so far as it affects the 
interest of the clients of such counsel. 
So far as they are concerned, the de- 
cree is agreed to as a whole, without 
reservation. Prom such a decree no 
appeal lies, as the consent cures all 
such errors. Hounshell v. Hounshell, 
116 Va. 675, 82 S. E. 689. 

Showing |*latture of Judgment in Ap- 
pellate Court. — A final judgment of a 
circuit court dismissing a declaration 
on demurrer over the express exception 
of plaintiff, brought here for review on 
writ of error, can not by affidavits be 
shown to be a judgment by consent 
so as to effect a dismissal of the writ 
of error. Fox v, Hinton, 70 W. Va. 
654, 74 S. E. 908. 

I. JUDGMENT OR DECREE LIA- 
BLE TO BE REVERSED OR 
AMENDED BY TRIAL COURT. 
Necessity for 'Motion in Trial Court. 



248 



Appeal and Error 



— Va. Code 1919, § 6334, provides that 
no appeal, etc., shall be allowed for 
any matter for which a judgment or 
decree is liable to be reversed , or 
amended, on motion as provided in § 
6333, by the court which rendered it, 
or the judge thereof, until such motion 
be made and overruled in whole or in 
part. 

J. APPEALS FROM CORPORA- 
TION COURTS. 

Courts of the City of Richmond.— 
Code of Va., § '5929. 

Court of Law and Chancery of Roa- 
noke. — Code of Va., § 5^50. 

Courts of tiie City of Norfolk. — 
Code of Va., § 5938. 

K. ACTION COMPELLABLE BY^ 
MANDAMUS. 

Action which can certainly be com- 
pelled by mandamus can not be ap- 
pealed from. Richmond Cedar Works, 
etc., Co. V. Harper, 129 Va. 481, 106 S. 
E. -516. 

IV. WHO MAY APPEAL. 

HA. IN GENERAL. 

Accused in Criminal Case. — Via. 
Code 1919, § 4931; Barnes Code ch. 
160, § 3. 

Person Deceased. — A writ of error 
can not be awarded to a person who is 
dead, and, if inadvertently done, the 
writ will be dismissed, but a new writ 
may be applied for by his represen- 
tative. Jackson v. Wickham, 112 Va. 
126, 70 S. E. 539. 

Debtor of Deceased Judgment Cred- 
itor. — Under the practice in this state, 
where a judgment creditor has died 
before a writ of error is taken, the 
debtor may nevertheless prosecute his 
writ of error without a revival of the 
judgment, and the writ may be served 
upon the personal representative, if he 
is named in the petition. Whitting^ton 
V. Jefferson County, 79 W. Va. 1, 90 S. 
E. 821. 

Pauper.— See post, COSTS. 



A. PARTIES ONLY. 

One can not appeal a case to the su- 
preme court unless he has been a party 
to the controversy in the circuit court, 
or stands in the place of such party as 
legal representative. Wade v. Carney, 
68 W. Va. 756, 70 S. E. 770. See Elkins 
Nat. Bank v. Simmons, 57 W. Va. 1, 4, 
49 S. E. 893. 

Though interested, a party can not 
for the first time come into a cause 
after it is ended below and obtain an 
appeal. Wade v. Carney, 68 W. Va. 
756, 70 S. E. 770. 

The special receive of a federal 
court, though authorized by .that court, 
will not be entertained or heard in ihe 
supreme court upon an appeal by him 
from a decree pronounced by a circuit 
court of this state in a cause pending 
there, to which he was not a party and 
whose personal rights are in no way 
involved or affected by the decree ap- 
pealed from. Whyel v. Jane Lew Coal, 
etc., Co., 67 W. Va. 651, 69 S. E. 192. 

Petitioners Improperly Refused Right 
to Become Parties to Pending Suit- 
Petitioners, who have been improp- 
erly refused the right to file their pe- 
tition in a pending suit and to become 
parties thereto, have the same right to 
appeal to this court as if they had been 
made parties by the bill. Anderson v. 
Bowen, 77 W. Va. 89, 87 S. E. 186. 

Vacation of Judicial Sale— Purchas- 
er's Right of Appeal. — A purchaser at 
a judicial sale which has been con- 
firmed has acquired such a fixed inter- 
est in the property sold as entitles him, 
though not a party to the original suit, 
to appeal to a higher tribunal to pro- 
tect his rights against an improper 
setting aside of such sale, at least 
where the resale has been made and 
confirmed bv the court. Eakin v. Ea- 
kin, 83 W. Va. 512, 98 S. E. 608. 

iB. WHO ARE PARTIES. 

Personal Representative of Deceased 
Party. — ^Jackson v, Wickham, 112 Va. 
128, 70 S. E. 539. PoflF v. PoflF. 128 Va. 



Appeai, and Error 



249 



62, 104 S. E. 719. See ante, "Parties 
Only," IV, A. 

C. MUST BE AGGRIEVED. 

1. General Rule. 

In order that an appeal may be suc- 
cessfully prosecuted, it must be shown 
that the appellant has been aggrieved. 
Rowland v, Rowland, 104 Va. 673, 52 
S. E. 3€6, Kelner v, Cowden, 60 W. 
Va. 600, 55 S. E. 649; Brown v. How- 
ard, 106 Va. 262, 55 S. E. 682; Elkins 
Nat Bank v, Simmons, 57 W. Va. 1, 49 
S. E. 893; Beecher v, Foster, 66 W. 
Va. 453, 460, 66 S. E. 643; Gieenlee v. 
Steelsmith, 64 W. Va. 353, 62 S. E. 459. 

2. Applications of Rule. 

The fact that, after a report of debts 
against a decedent's estate has been 
confirmed, other creditors come in by 
petition and are asserting debts against 
decedent's estate does not prevent a 
party, whose rights have been preju- 
diced by the decree confirming the re- 
port of indebtedness, from appealing. 
Reid V. Windsor, 111 Va. 825, 69 S. E. 
1101. 

Where Verdict against Defendant 
Set Aside. — In an action under the W. 
Va, Code, to recover damages for the 
death of a person from wrongful act 
or neglect, and a verdict for the plain- 
tiff is, on his motion, against the ob- 
jection of the defendant, erroneously set 
aside because of smallness of the 
amount of the verdict, the defendant 
may have a writ of eiror. Hawkins v, 
Nuttalburg Coal, etc., Co., 66 W. Va. 
415, 66 S. E. 520. 

An infant legatee as to whom a will 
is declared valid, and whose legacy 
has been paid in full, has no interest in 
and can not appeal, from a decree de- 
claring the will void as to all other 
parties. Rowland v, Rowland, 104 
Va- 673, 52 S. E. 366. 

Special Commissioner. — A special 
commissioner appointed to make sale 
of land, but who has no personal in- 
terest in the subject-matter of litiga- 
tion, can not appeal from a decree set- 
ting aside the decree of sale. He is a 



mere ministerial officer of the court, 
whose powers and duties cease, ipso 
facto, upon setting aside the decree of 
sale. So far as it affects him in his ca- 
pacity of commissioner, the setting 
aside of a decree of sale is not an ap- 
pealable grievance in contemplation of 
§ 3454 of the Virginia Code. (Va. 
Code 1919, 5 6336.) Brown v. How- 
ard, 106 Va. 262, 55 S. E. 682. 

A widow who has not renounced 
her husband's will has no interest in 
land devised by him solely to his chil- 
dren, and can not appeal from a de- 
cree adverse to the interest of the chil- 
dren, although a party to the suit in 
which the decree was rendered. Giv- 
ens V. Clem, 107 Va. 435, 59 S. E. 413. 

Guardians — Infants. — A guardian ad 
litem may appeal in the names of the 
infants, by himself as such guardian, 
from a decree adverse to their interest, 
but if he fails to do so, the infants 
may appeal by some one as their next 
friend. Givens v, Clem, 107 Va. 435, 
59 S. E. 413. 

Parties Not Maddng or Affected by 
Motion to Quash Attachment Can Not 
Appeal fr m Ruling Thereon. — Elkins 
Nat. Bank v. Simmons, 57 W. Va. 1, 
49 S. E. »93. 

.Proceedings before State Corpora- 
tion Conmiission. — Va. Code 1919, § 
3734. 

Defendant in Proceedings to Re- 
move Public Officer. — Va. Code 1919, 
§ 2706. 

Forfeiture of Corporate Charter. — 
Va. Code 1919, § 3«31. 

Assessment of Insurance Companies. 
— Va. Code 1919, § 4195. 

Person Aggrieved by Order Grant- 
ing or Refusing Leave to Allow City 
to Erect Dam in Watercourses. — Va. 
Code 1919, § 3060. 

a^. Error Affecting Only Co-Party. 

Where a debtor and another jointly 
own a life interest in certain property, 
and a decree is entered in a judgment 
creditors' suit directing the sale of the 
entire life interest in satisfaction of the 



250 



Appeal and Error 



debts of the debtor, it will not be re- 
versed, though erroneous, where the 
owner of the other half interest is a 
party to the suit and does not join in 
the appeal from the decree. Bruceton 
Bank v. Alexander, 83 W. Va. 573, 98 
S. E. 804. 

Joint Tort Feasors. — While joint tort 
feasors are jointly and severally lia- 
ble, no right of contribution exists 
among them, and neither has a remedy 
over against the other. If they are 
proceeded against jointly, the plaintiff 
may dismiss or discontinue his action 
as to one defendant, without affecting 
1 is rights against the other. If judg- 
ment is against one, the other can not 
have a writ of error to review it. Wal- 
ton V. Miller, 109 Va. 210, 63 S. E. 458. 

4. EfiPect of Assignment ol Interest. 

In Hilliard v. Union Trust Co., 123 
Va. 724, 97 S. E. 335, a motion to dis- 
miss writ of error because the plaintiff 
in error, had previously conveyed all 
her interest in the subject matter of 
the litigation to her son, was overruled. 

D. THE COMMONWEALTH. 

1. In Criminal Cases. 

a. In Virginia. 

Constitutional Provision — No Appeal 
Except in Revenue Cases. — Const, of 
Va., §§ 8, 88. Commonwealth v. Will- 
cox, 111 Va. 849, 69 S. E. 1027; Com- 
monwealth V. Perrow, 124 Va. 805, 97 

5. E. 820. 

Section 4052 of the Code of 1904 
providing for appeals on behalf of the 
commonwealth is unconstitutional ex- 
cept in so far as it refers to api)eals in 
revenue cases. Commonwealth v, Will- 
cox, HI Va. 849, 69 S. E. 1027; Com- 
monwealth V. Perrow, 124 Va. 805, 97 
S. E. 820. 

Section 88 of the Constitution ap- 
plies only to cases where the life or lib- 
erty of accused is involved, leaving to 
the legislature, so far as this particu- 
lar section of the Constitution is con- 
cerned, a free hand with reference to 
appeals in criminal cases where no 



other punishment than a tine is pre- 
scribed. As to this laaer class of cases 
it is apparent, therefore, that § 4052 of 
the Code of 1904 is not in conflict with 
this provision of the Constitution. 
Commonwealth v, Perrow, 124 Va, 805, 
97 S. E. 820. 

Rule o£ Former Jeopardy. — Section 
8 of the Constitution of 1902 incorpo- 
rates the well known common law 
doctiine of formqr jeopardy. When 
the purpose of an appeal in a criminal 
case is to procure on behalf of the State 
a reversal of the judgment and a new 
trial of the accused (as distinguished 
from a mere review and decision of 
the legal question involved for use as 
a precedent in future cases) the rule 
against second jeopardy for the same 
offense operates proprio vigore to de- 
stroy the right of appeal. The mat- 
ter is jurisdictional, and the accused is^ 
not obliged to first abide the result of 
the appeal, and, in the event of a re- 
versal, resort to his plea of autrefois 
acquit or autrefois convict to avoid a 
second trial. Commonwealth v. Per- 
row, 124 Va. 805. 97 $. E. 820. 

Prior to the adoption of the Consti- 
of 1902, there was no express or im- 
plied constitutional inhibition upon the 
right of appeal to the commonwealth, 
and as the subject was then controlled 
entirely by the common law, there was 
no legal reason why the legislature 
might not, by express statute, have al- 
lowed the state a writ of error in any 
criminal case. Commonwealth v, 
Perrow, 124 Va. 805, 97 S. E. 820. 

Provision of United States Constitu- 
tion Not Applicable to the States.— 
Commonwealth v, Perrow, 124 Va. 805, 
97 S. E. 820. 

Liquor Cases. — Code 1919, § 4645, 
provides that in all cases arising under 
chapter 184 relating to intoxicating liq- 
uor the state shall have the right to ap- 
peal except when forbidden by the Con- 
stitution. 

b. In West Virginia. 

The supreme court of West Virginia 



Appeal and Error 



251 



is without jurisdiction to entertain a 
writ of error by the town or state from 
the judgment of the circuit court dis- 
charging a prisoner from prosecution 
under a municipal ordinance for public 
drunkenness and disorderly conduct, 
even though the validity of such ordi- 
nance may be involved. Philippi v. 
Kittle, 56 VV. Va. 348, 49 S. E. 238. 

Writ of Error to Judgment Quash- 
ing Indictment. — Barnes W. Va. Code, 
p. 1156, ch. 135, § 31. 

Prc^bition Act. — Barnes W. Va. 
Code, p. 409, ch. 32A, § 22, provides 
that in all cases arising under the state 
prohibition act the state shall have the 
right to appeal. 

8. In Revenue Cases. 

See ante, "In Criminal Cases," IV, 
D, 1. 

The Commonwealth has the right of 
appeal in all the prosecutions for the 
violation of a law relating to the state 
revenue. Va. Const. §§ 8, 88, Va. Code 
1919, § 4931. 

Where the defense to a prosecution 
for the unlawful sale of malt liquor is 
that the defendant had the right to sell 
it at the place where sold, under the 
revenue laws of the state, the case in- 
volves "a violation of a law relating to 
the state revenue" and § 4051 and an 
appeal lies on behalf of the common- 
wealth. Commonwealth r. Goodwin, 
109 Va. 828, €4 S. E. 54. 

West Virginia.— W. Va. Const, art. 
S. § 3, ch. 113, § 4, Barnes Code, ch. 
160, § 3. — The plain purpose of the 
provision of the constitution and stat- 
ute was to grant the state a writ of 
error in matters relating to the reve- 
nue. State V. Hotel McCreery Co., 68 
W. Va. 130, 132, 69 S. E. 472. 

The supreme court of appeals has 
jurisdiction of a writ of error for the 
state from a judgment of a circuit court 
for defendant, a corporation, upon in- 
dictment for selling liquor under a li- 
cense issued to it in violation of § 
10, chap. 82, Acts 1907, forbidding li- 
cense to a corporation. State v. Hotel 



McCieery Co., 68 W. Va. 130, 69 S. E. 
472. 

A writ of error lies for the state 
from the supreme court in prosecutions 
for offenses under provisions of chap. 
32 of the Code relating to licenses, 
since such cases relate to public reve- 
nue. State V. Hotel McCreery Co., 68 
VV. Va. 130, 69 S. E. 472. 

Erroneous Assessment of Taxes in 
General.— Va. Code 1919, §§ 2389, 2391. 

Erroneous Assessments Made by 
State Corporation Commission. — Va. 
Code 1919, § 2393. 

Appeal from Decision Relating to 
Merchants' Licenses. — Va. Code 1919, § 
2366. 

Violation of Act Held Not Violation 
of State Revenue Law. — The act of 
March 5, 1900 (Acts 1899-1900, p. 868) 
entitled "an act for the protection of 
farmers, etc., in Buckingham county, 
by requiring licenses of labor agents, 
and imposing penalties for violation.'* 
empowered the board of supervisors to 
place a license tax upon all labor 
agents coming into the county for the 
purpose of inducing local laborers to 
go elsewhere, and provided that any 
agent or representative soliciting la- 
borers to leave the county without hav- 
ing in his possession a license or re- 
ceipt showing that the license had been 
paid, should be guilty of a misde- 
meanor and punished on conviction "by 
a fine. Held: That a violation of this 
act was not a violation of a state reve- 
nue law and, therefore, no appeal lies 
from a judgment of the circuit court 
quashing and dismissing a warrant is- 
sued by a justice of the peace charging 
accused with "soliciting labor illegally 
and contrary to" the act. Common- 
wealth V, Perrow, 124 Va. 805, 97 S. E. 
820. 

5. Other Proceedings. 

Proceedings before State Corpora- 
tion Conmiission. — Va. Code 1919, § 
3734. See post, PUBLIC SERVICE 
COMMISSIONS. 

Forfeiture of Corporate Charter. — 
Va. Code 1919, § 3831. 



252 



Appeal and Error 



Proceedings for Removal of Public 
Ofl&cer.— Va. Code 1919, § 2706. 

Dy2. COUNTIES AND CITIES. 

Counties and cities may sue. and be 
sued, and have the right of appeal from 
and adverse decision both at law and in 
equity. Commonwealth v, Schmeb, 
116 Va. 62, 81 S. E. 45. 

E. JOINT APPEALS. 
Consolidation by Consent. — A single 

appeal may be taken from decrees 
in two separate suits substantially, 
though informally, prepared, su'b- 
mitted and heard as one, by agreement 
of the parties and consent of the court, 
express or implied. Kelly v. Wells- 
burg, etc., Co., 74 W. Va. 130, 81 S. E. 
712. 

Cases Involving Di£fercnt Issues be- 
tween Same Parties. — Three several 
judgments, rendered in three different 
proceedings, commenced at different 
times, in which different defenses were 
made, and never consolidated before 
the judgments were rendered, though 
between the same parties, can not be 
brought to this court by a single writ 
of error. Commonwealth v. Round 
Mountain, etc., Mfg. Co., 117 Va. 30, 
83 S. E. 1061. 

F. ESTOPPEL TO APPEAL. 
Accepting Benefits of Decree. — A 

party availing himself of a decree as 
far as favorable to him can not appeal 
from the decree wherein it is not favor- 
able to him if his acceptance of the 
benefit on the one hand is totally in- 
consistent with appeal on the other. 
Bright V. Mollohan, 75. W. Va. 116, 83 
S. E. 298; McKain v. Mullen, 65 W. 
Va. 558, 64 S. E. 829; Carpenter v. 
Camp Mfg. Co., 112 Va. 88, 70 S. E. 
496: Eakin v. Eakin, 83 W. Va. 512, 
9« S. E. 608. 

Cross errors, assigned on rehearing, 
can not be considered, where a party 
who was responsible for the errors had 
accepted the benefit of the decrees en- 
tered in the suit. Pardee, etc.. Lumber 
Co. V, Odell, 78 W. Va. 159, 88 S. E. 
419. 



Same— Exceptions to Rule.— To the 
general rule that if a party accepts the 
benefits of a decree in his favor he 
thereby waives his rights to appeal, 
there is a well recognized exception, 
applied in this case, that if he is so 
absolutely entitled to the benefit re- 
ceived that a reversal of the decree 
can not affect his right to it, he does 
not thereby waive error, or lose his 
right to appeal. Gay v. Householder, 
71 W. Va. 277, 76 S. E. 450; McKain 
V. Mullen, 65 W. Va. 558, 64 S. E. 829; 
Watring v. Gibson, 84 W. Va. 204, 209, 
100 S. E. 68. 

Where the parts of a decree are sep- 
arate and independent, and the receipt 
of a benefit from one part is not in- 
consistent with an appeal from an- 
other, the party receiving the benefit 
will not be deemed to have waived his 
right to appeal. Eakin v. Eakin, 83 
W, Va. 512, 98 S. E. 608. 

Where, after confirmation of a ju- 
dicial sale, the court later sets it aside 
because of a higher offer, orders a re- 
sale, and directs the return of the 
money paid and notes delivered by the 
first purchaser, the portion of the de- 
cree directing the return of the money 
and notes is clearly separable and in- 
dependent from that part of the de- 
cree which totally deprives the pur- 
chaser of all his rights und-er the sale 
confirmed to him, and the acceptance 
of the one under protest at the direc- 
tion of the court can not reasonably 
be construed into a waiver of his right 
to appeal the other. Eakin v. Eakin, 
83 W. Va. 512, 98 S. E. 608. 

Conduct Inconsistent with Claim of 
Right to Review. — No waiver or re- 
lease of errors operating as a bar to the 
further prosecution of an appeal or 
writ of error can be implied except from 
conduct which is inconsistent with the 
claim of right to reverse the decree or 
judgment which it is sought to bring 
in revi'iw. Eakin v. Eakin, 83 W. Va. 
512, 98 S. E. 60fi. 

Illustrations. — The defendant in a 
suit by which his tax deed is set aside. 



Appeal and Error 



253 



can not unreservedly accept the taxes, 
interest, and charges tendered by the 
bill and ordered by the decree to 'be 
paid him, and then appeal from the de- 
cree. His acceptance is a positively 
implied waiver of his right to appeal. 
Nor will an offer to return the money, 
made long after its acceptance, avail to 
prevent dismissal of an appeal in such 
case. McKain v, Mullen, 65 W. Va. 
558, 64 S. E. 829. 

Where a party to a suit for* the con- 
struction of a testator's will and the 
administration of his estate under the 
care of the court not only received 
what, under the decree construing the 
will, she was entitled to, but also brought 
a suit based upon that construction of 
the will, and procured a sale of a part 
of the real estate devised by the will, 
and a distribution of the proceeds 
among the parties, as ascertained and 
determined by the decree construing 
the will, she can not appeal from the 
last-mentioned decree. The right to 
bring such suit, and the right to ap- 
peal from said decree, are wholly in- 
consistent, and the election to bring thp 
suit and have the fruits thereof distrib- 
uted as aforesaid was a renunciation of 
the right to appeal from the decree 
which she sought to and did enforce 
in the other suit. Walter v, Whitacre, 
113 V . 150, 73 S. E. 984, distinguish- 
ing Southern- R. Co. v, Glenn, 98 Va. 
309, 36 S. E. 395. 

A party to a cause, who has paid a 
mofoey decree against hinsi, can not, 
after the cause has been appealed by 
the opposite party, cross-assign as er- 
ror the rendering of such decree. Wat- 
ring V, Gibson, 84 W. Va. 204, 100 S. 
E. 68. 

Agreement of State Auditor as to 
Claim for Taxes. — ^An agreement of the 
State Auditor made in good faith by 
and with the advice and consent of the 
attorney general, who represented and 
conducted the litigation on behalf of 
the commonwealth to accept the sum 
awarded by the circuit court in set- 
tlement of the .claims for taxes against 



a certain party, is valid and binding on 
the state, and deprives the common- 
wealth of an appeal. Commonwealth 
y. Schmelz, 111 Va. 62, 81 S. E. 45. 

Allowing Appeal When Verdict Re- 
duced and Accepted under Protest. — 
Va. Code 1919, § 6335. See DuPont, 
etc., Co. r. Taylor, 124 Va. 750, 98 S. 
E. 8«6. 

V. JURISDICTION OF SUPREME 
COURT OF APPEALS. 

^A. IN GENERAL. 

To What Courts Applicable.— "Mr. 
Barton, in discussing the jurisdiction of 
the supreme court of appeals, o»bserves: 
'The appellate jurisdiction extends to 
all matters of the requisite amount de- 
termined in the circuit or corporation 
courts.' 1 Bar. L. Pr. 39." Southern 
R. Co. z\ Hill, 106 Va. 501, 506, 56 S. 
E. 278. 

Jurisdiction of Appellate Court De- 
pendent upon Jurisdiction Below. — If 
a justice or other inferior court or tri- 
bunal has no jurisdiction to hear and 
determine a cause, an appeal from a 
judgment rendered therein does not 
confer upon a court of superior rank 
a jurisdiction not possessed by the for- 
mer, though it may have had author- 
ity in the first instance to adjudicate 
the matter in controversy in its en- 
tirety. Brotherton v, Robinson, 85 W. 
Va. 753, 102 S. E. 700. 

The jurisdiction of the court below 
was limited to the issue made by the 
pleadings and the same is true of the 
jurisdiction of the Supreme Court of 
Appeals on appeal. Reynolds v, Ad- 
ams, 125 Va. 295, 99 S. E. 695. 

Dismissal for Want of Jurisdiction. 
— See post, "Want of Jurisdiction," 
XI, B, 2. 

A. CONSTITUTIONAL AND STAT- 
UTORY PROVISIONS. 

Va. Const. § 88; W. Va. Const, art. 
VIII, § 3, Va. Code, 1919, §§ 5864, 
5865. Barnes Code, ch. 113, Q 4.* ch. 
114A, § 8. 

Virginia and W. Va. Provisions Dis- 



254 



Appeal and Error 



tinguished. — Carskadon v. Board, 61 
W. Va. 468, 56 S. E. 834. 

Awarding Injunction. — Va. Code 
1919, § 6320. 

Where Writ of Error or Supersedeas 
Awarded to Judgment in Caveat Pro- 
ceedings.— Va. Code 1919, § 449. 

B. JURISDICTION DEPENDENT 
UPON STATUTE. 

It is a fixed rule that unless a stat- 
ute, pursuant to the constitution, grants 
a writ of error in the case, none can 
be entertained in the supreme court of 
appeals. McLean v. State, 61 W. Va. 
537, 56 S. E. 884; State v. Shumate, 48 
W. Va. 359, 369, 37 S. E. 618; Carska- 
don V. Board, 61 W. Va. 468, 56 S. E. 
834. Compare Forbes v. State Coun- 
cil. 107 Va. 853, 60 S. E. 81. 

The jurisdiction of this court rests 
wholly upon the written law and can 
be exercised only in obedience to the 
constitution and laws passed in pur- 
suance thereof. Statutes of limitation 
are deemed statutes of repose, and 
this conception of such statutes applies 
with peculiar force to limitations upon 
the right of appeal. When the legis- 
lature has prescribed the method for 
the exercise of the right of appeal or 
supervision, such method is exclusive, 
and neither court nor judge can mod- 
ify these rules without express statu- 
tory authority, and then only to the 
extent specified. Tyson r. Scott, 116 
Va. 243. 81 S. E. 57. 

Proceedings of Public Service Com- 
mission. — See post, "Appeals from 
Public Service Commissions," XVI, 
A, 105^. 

C. JURISDICTION MUST APPEAR 

affirmatively: 

The jurisdiction of the appellate 
court must affirmatively appear from 
the record. Ritter Lumber Co. v. Coal 
Mountain Min. Co., 115 Va. 370, 372, 
79 S. E. 322; Jones v. Buckingham 
Slate Co., 116 Va. 120, 81 S. E. 28; 
Oppenheimer v, Triple-State Nat. Gas, 
etc., Co., 62 W. Va. 112, 115, 57 S. E. 
271. 



The jurisdiction of the supreme 
court of appeals affirmatively appears 
from the record, when the court can 
see that the judgment of the lower 
court necessarily involved the consti- 
tutionality of some statute or ordi- 
nance, or drew in question some right 
under the federal state constitution. 
Ward Lumber Co. v. Henderson-White 
Mfg. Co., 107 Va. 626, 628, 59 S. E. 
476. 

Affidavits in Appellate Court Show- 
ing Amornt in Controversy. — On an 
appeal, the amount in controversy 
must, as a general rule, be made to ap- 
pear affirmatively. If, however, the 
record is silent on the subject, affidav- 
its may be filed in the appellate court 
to show the real amount in contro- 
versy. LanVb v, Thompson, 112 Va. 
134, 70 S. E. 507. 

Dismissal of Appeal for Failure to 
Show Jurisdiction. — Sec post, 
"Grounds," XI, B. 

D. BURDEN OF PROOF. 

The burden is upon him who invokes 
the authority of the supreme court of 
appeals to establish its jurisdiction 
over the matter in controversy. For- 
bes V. State Council, 107 Va. 853, 60 
S. E. 81; Lamb v, Thompson, 112 Va. 
134, 70 S. E. 507; Ritter Lumber Co. r. 
Coal Mountain Min. Co., 115 Va. 370, 
79 S. E. 322; Jones v, Buckingham 
Slate Co.. 116 Va. 120, 81 S. E. 28. 

"The following qualification of the 
general rule does not affect this case, 
namely, that *on the other hand, when 
the original demand is pecuniary and 
i excess of the jurisdictional amount, 
but is alleged by the appellee to have 
been reduced below that amount by 
payment, the onus rests upon him to 
make that fact appear.'" Ritter Lum- 
ber Co. T'. Coal Mountain Min. Co., 
115 Va. 370, 372. 79 S. E. 322. 

E. JURISDICTION WHERE MAT- 

TER IN CONTROVERSY IS 
MERELY PECUNIARY. 

1. Provisions Stated. 

a. In Virginia. 
Former and Present Jurisdictional 



Appeal and Error 



255 



Amount. — In the original digest the ju- 
risdictional amount of the supreme 
court of appeals in matters merely pe- 
cuniary is stated to be $500, but by 
subsequent constitutional and statutory 
provisions the appellate jurisdiction of 
the supreme court of appeals of Vir- 
ginia has been reduced to $300. So 
now where the matter involved is 
merely pecuniary and less than $300, 
the appellate court is without jurisdic- 
tion. Va. Const. 8»; Va. Code 1919, 
§ 6337. Elliott V. Ashby, 104 Va. 716, 
718, 52 S. E. 383; Allison v. Wood, 
104 Va. 765, 52 S. E. 559; International 
Harvester Co. v. Smith, 105' Va. 683, 
6S5, 54 S. E. 85«; Schermerhorn v. 
Commonwealth, 107 Va. 707, 60 S. E. 
65; Holds worth v. Crowder, ill Va. 
663, 664, 69 S. E. 935; Ritter Lum'ber 
Co. V, Coal Mountain Min. Co., 115 Va. 
370, 372, 79 S. E. 322; Steinman v. 
Clinchfield Coal Corp., 121 Va. 611, 
633, 93 S. ]£. 684; Chesapeake, etc., R. 
Co. V, Williams, 122 Va. 502, 505, 95 
S. E. 417. 

"The first duty of this court, on writ 
of error or appeal, is to test its ju- 
risdiction, by the sum or value in con- 
troversy." Yoho V. Thomas, 85 W. 
Va. 593, 102 S. E. 236. 

Operation and Effect of Statute. — A 
judgment for four hundred dollars was 
rendered by a circuit court in a con- 
tested action at law December 8, 1903, 
but the court did not adjourn till De- 
cember 19, 1903. The statute reducing 
the minimum jurisdictional amount of 
the supreme court of appeals in mat- 
ters merely pecuniary became opera- 
tive December 10, 1903. Held, a writ 
of error lies to said judgment from 
this court. The judgment did not be- 
come final until after the statute be- 
came operative. Moreover the statute 
is remedial in its nature, and it« lan- 
guage broad enough to cover judg- 
ments rendered before as well as after 
its passage. Allison v. Wood, 104 Va. 
765, 53 S. E. 559. 

b. In West Virginia. 
In order to give the supreme court 



of appeals of West Virginia jurisdic- 
tion, the constitution and statute pro- 
vide that in matters merely pecuniary, 
a sum exceeding one hundred dollars 
exclusive of costs must be involved. 
W. Va. const, art. VIII, § 3; Barnes 
Code ch. 113, § 4; Oppenheimer v, 
Triple-State Nat. Gas. etc., Co., 62 W. 
Va. 112, 114, 57 S. E. 271; Montgom- 
ery z;. Economy Fuel Co., 61 W. Va. 
620, 627, 57 S. E. 137; Dickinson v. 
Mankin, 61 W. Va. 429, 431, 56 S. E. 
824; McClaugherty v, Rumburg, 71 W. 
Va. 98, 76 S. E. 137. Code ch. 113, § 
4; Carskadon v. Board, 61 W. Va. 468, 
5« S. E. 834. 

8. Provisions Construed and Applied. 

5^a. In General. 

Where the effect of a judgment is to 
draw in question the validity of a claim 
to an aniount of greater value than the 
jurisdictional sum of the appellate 
court, although the amount involved in 
the present action is not as large as the 
minimum required, a writ of error w?ll 
lie, if it appears that the judgment 
conclusively settles the rights of the 
parties to the larger amount. But this 
principle will not be extended ftirther 
than the adjudged cases have gone. 
Jones V. Buckingham Slate Co., 116 
Va. 120, 81 S. E. 28. 

Amount in Controversy Can Not Be 
Increased by Fictitious Counterclaims. 
— The amount in controversy before a 
justice of the peace can not be in- 
creased by a fictitious counterclaim, so 
as to entitle the defendant to an ap- 
peal, or to a writ of error in case an 
appeal is denied him by the justice and 
the circuit court. McDonald Colliery 
Co. V, Crotty, 69 W. Va. 407, 71 S. E. 
568. 

Quaere, does a defendant in a case 
before a j'^stice of the peace acquire 
the right to appeal by filing even a 
bona fide counterclaim of appellate 
amount, if he offers no evidence on the 
trial before the justice in support 
thereof? McDonald Colliery Co. v, 
Crotty, 69 W. Va. 407, 71 S. E. 568. 



256 



Appeal and Error 



When the amount in controversy is 
sufficient to give appellate jurisdiction, 
but the plaintiff in error has been prej- 
udiced in a sum less than the jurisdic- 
tional amount, the judgment will be 
reversed, but the costs in this court will 
be adjudged to the defendant in error 
as the party sifhstantially prevailing. 
Wallace v. Leroy, 57 W. Va. ^63, 50 S. 
E. 243. 

Judgment for More than Claimed 
in Writ — Where, in an action of as- 
sumpsit, judgment is rendered for a 
greater sum than the damage^ laid in 
the writ and declaration, the appellate 
court will not review such judgment, 
when such excess of damages is not 
sufficient to give said court jurisdiction. 
Giboney z\ Cooper, 57 W. Va. 74, 49 S. 
E. 939. 

a. Meaning of Term ''Matter in Con- 
troversy." 

The real matter in controversy is 
that for which the suit is brought and 
judgment is rendered, and not that 
which may or may not come in ques- 
tion. In other words, the sole test of 
jurisdiction is the amount which the 
defendant may pay and th^trcSy dis- 
charge himself, and if that sum be less 
than the minimum jurisdiction of the 
court, the appeal or writ of error 
should be dismissed. Elliott v. Ashby, 
104 Va. 716, 717, 52 S. E. 383. 

On a writ of error to review the 
judgment of a justice of the peace dis- 
missing a petition of a subsequent at- 
taching creditor against a prior one, 
the amount actually in controversy is 
the amount which the petitioner will 
lose if the defendant thereto should 
prevail in his attachment, which may 
include principal, interest and costs in 
the defendant's suit against the com- 
mon debtor. Bank r. Loet>, 71 W. Va. 
494, 76 S. E. &83. 

Upon an inquiry as to whether the 
amount involved in a pecuniary con- 
troversy is sufficient to confer appel- 
late jurisdiction, the amount of the 
claim asserted on the one side and de- 
nied on the other, not the validity 



thereof, is the criterion, unless the 
claim is obviously pretentious and 
made merely to confer jurisdiction. 
Brown v. Brown, 72 W. Va. 648, 78 S. 
E. 1040. 

b. Costs Not Considered. 

The constitutional and statutory pro- 
visions expressly exclude the addition 
of costs to the value or amount in con- 
troversy for the purpose of bringing 
the amount up to the jurisdictional 
point. Va. const. § 88; W. Va. const, 
art. VIII, § 3; Va. Code 1919, § 6337; 
Barnes Code, ch. 113, § 4. Nutter v. 
Brown, 5L8 W. Va. 237, 239, 52 S. E. 
88; Carskadon v. Board, 61 W. Va. 
468, 470, 56 S. E. 834; State v. Boner, 
57 W. Va. 81, 82, 49 S. E. 944; Oppcn- 
heimer v. Triple-State Nat. Gas, etc., 
Co., 62 W. Va. 112, 57 S. E. 271. 

c. Inclusion of Interest. 

In the determination of the question 
of appellate jurisdiction of a decree 
for money, interest included therein is 
not to be excluded. Murphy v. Fair- 
weather, 72 W. Va. 14, 77 S. E. 321. 

Judgment for thp state for $100 on a 
scire facias on a recognizance of bail, 
/^t a subsequent term an order is made 
setting aside the judgment. As the 
principal and interest exceeded $100 
when the order of release was made, 
the supreme court of West Virginia 
has jurisdiction of a writ of error sued 
out t)y the state. State v. Boner, 57 
W. Va. 81, 49 S. E. 944. 

Interest May Be Waived. — In an 
action of assumpsit to recover excess 
freight charges on creosote, it was en- 
tirely competent for the plaintiffs to 
claim interest or not as they chose, and 
the trial court was powerless to make 
them claim it on demand of defend- 
ant, there being no evidence of a pur- 
pose to defeat the jurisdiction of a 
court of record by the release of a part 
of a demand previously asserted. Con- 
sequently, where the amount in con- 
troversy, without interest, was beneath 
the jurisdictional limit of the Supreme 
Lourr ot Appeals, a writ of error must 



Appeal and Error 



257 



be dismissed as improvidently awarded, 
unless jurisdiction can be shown on 
some other ground than the amount in 
controversy. Chesapeake, etc., R. Co. 
V. Williams, 122 Va. 502, 95 S. E. 417. 

g. Test Where Plaintiff Below Is Ap- 
pellant. 

Amount Claimed Controls. — The test 
of appellate jurisdiction in the supreme 
court of appeals, when the plaintiff be- 
low is the plaintiff in error, and the 
matter in controversy is pecuniary, is 
the amount actually demanded in the 
court below and not merely the amount 
which he shows himself to be entitled 
to recover. Wallace v. Leroy, 57 W. 
Va. 263, 50 S. E. 243; Lon^^^acre Col- 
liery Co. V. Creel, 57 W. Va. 347, 50 
S. E. 430; Patterson v. Clem, 79 W. 
Va. 6G6, 91 S. E. 654. Oppenheimer 
V. Triple-State Nat. Gas, etc., Co., 62 
W. Va. 112, 57 S. E. 271. 

"But a different rule applies where 
off-sets or claims are made by the de- 
fendant. Then the amount to be 
looked to, to ascertain whether this 
court has jurisdiction, is the amount 
claimed by the plaintiff, and, if his 
claim has been wholly disallowed, and 
a recovery taken against him in favor 
of the defendant, to also add to the 
amount claimed by the plaintiff in his 
summons the amount of the judgment 
rendered against him in favor of the 
defendant." Longacre Colliery Co. v. 
Creel, 57 W. Va. 347. 349. 50 S. E. 430. 

"It makes no difference that the 
claim of the plaintiff in his declara- 
tion or that of the defendant in his plea 
or set-off is found, in the end, not sus- 
tained by the evidence to the amount 
claimed, or for anything. This is a 
subsequent question, not pertinent to 
the jurisdiction of the appeal. That 
is a question which the appellate court 
will proceed to inquire into after it has 
determined that it has jurisdiction to 
inquire." Longacre Colliery Co. v. 
Creel, 57 W. Va. 347, 349, 50 S. E. 430. 

When Anoount Claimed Does Not 
ControL — When it appears without 
conflict or doubt from the record, in a 

—17 



purely pecuniary action, that the sum 
for which plaintiff was entitled to 
judgment, if entitled at all, did not ex- 
ceed one hundred dollars, a writ of er- 
ror can not lie to a denial of judgment 
to him, even though he declared for a 
sum sufHcient to call for appellate ju- 
risdiction. Lawson v. Hersman, 67 W. 
Va. 636, 69 S. E. 191; Oppenheimer v. 
Triple-State Nat. Gas, etc., Co., 62 W. 
Va. 112, 114, 57 S. E. 271; Dickinson v. 
Mankin, 61 W. Va. 429, 430, 56 S. E. 
824. 

h. Test Where Defendant Below Is 
Appellant. 
As to a defendant, the jurisdiction of 
the supreme court is tested by the 
amount of the judgment or decree of 
the court below against him, and not 
by the amount sued for. Johnson v. 
Wheeling Lumber Co., 69 W. Va. 539, 
72 S. E. 470; Longacre Colliery Co. v. 
Creel, 57 W. Va. 347, 50 S. E. 430. 

j. Application of Rule in Particular 
Suits. 

(1) Suits to Subject Property to Lien 
of Judgment 

Special Liens. — The appellate court 
of West Virginia has no jurisdiction to 
review the decree of a circuit court in 
a suit to enforce the payment of la- 
borers' mechanics' or materialman's 
lien, where such liens are separate and 
distinct and arise out of separate and 
distinct contracts, either upon the pe- 
tition of the owner of the property or 
of such lienors, except as to those liens 
decreed each of which exceeds the 
sum of $100. Wees v. Elbon, 61 W. 
Va. 380, 56 S. E. 611. See Virginia 
Supply Co. V. Calfee, 71 W. Va. 300, 
76 S. E. 669. 

In a suit to subject land to the pay- 
ment of a judgment, the amount in 
controversy is to be determined by the 
amount of the judgment, and the title 
or boundary of land is not involved. 
The jurisdiction of the court on an 
appeal by the defendant is regulated 
by the amount decreed against him, 
or declared to be a lien on the land. 



258 



Appeal and Error 



Steinraan v. Clinchfield Coal Corp., 121 
Va. 611, 633, 93 S. H. 684. 

(3) Consolidated Claims. 

Where several parties unite in an 
appeal, and it appears that there is no 
joint interest or community of inter- 
est among them; that their respective 
claims each had for its foundation an 
independent contract which each had 
the right to enforce without regard to 
the other, and the interest of no one of 
them amounts to as much as $500, the 
appeal will be dismissed as improvi- 
dently awarded. White v. Valley 
Bldg., etc., Co., »6 Va. 270, 31 S. E. 20. 

(5) Miscellaneous Instances. 

A bastardy proceeding is a civil case, 
from its very nature involving a mat- 
ter in controversy of greater value or 
amount than one hundred dollars, and 
may be appealed by the prosecutrix 
when dismissed erroneously. Bratt v. 
Cornwell, 68 W. Va. 541, 70 S. E. 271. 

Costs. — An appeal will lie to the su- 
preme court for an error as to costs 
which have been made the subject of 
agreement, when the amount thereof 
exceeds one hundred dollars. Castle 
z\ Castle, 69 W. Va. 400, 71 S. E. 385. 

Cases Invc^ving an Office.^ — ^This 
court has jurisdiction, upon writ of 
error, to review the final order of a 
circuit court in an election contest for 
a county office, where it is shown that 
the value of the office is greater than 
one hundred dollars. Williamson v. 
Musick, 60 W. Va. 59, 53 S. E. 706. 

In an action of detinue by the owner 
to recover possession of the property, 
the amount in controversy is the value 
of the property, although the claim for 
compensation is set up as ground of 
defense and title to the property dis- 
claimed. Caroway v. Cochran, 71. W. 
Va. 698, 77 S. E. 278. 

Forcible Entry and Detainer. — In 
West Virginia in an action of unlawful 
entry and detainer a writ of error lies 
but if upon consideration thereof it is 
found there is no error in the judgment 
giving recovery for the possession of 



the property sued for, the action of 
the court in allowing damages for the 
detention thereof will not be reviewed 
unless the amount of such damages, ex- 
clusive of costs, exceeds the sum of 
one hundred dollars. Montgomery v. 
Economy Fuel Co., 61 W. Va. 620, 57 
S. E. 137. 

Injunctions. — In West Virginia, an 
appeal does not lie from an order, 
overruling a motion to dissolve and 
perpetuating an injunction, where 
purely pecuniary interests are involved, 
unless the amount in controversy, ex- 
clusive of costs, exceeds one hundred 
dollars. Carskadon r. Board, 61 W. 
Va. 468, 56 S. E. 834. 

The appellate court is without juris- 
diction to entertain an appeal from a 
decree of a circuit court perpetually en- 
joining a board of education from let- 
ting a public school house for an al- 
leged illegal purpose, where the amount 
in controversy does not exceed one 
hundred dollars, exclusive of costs. 
Carskadon v. Board, 61 W. Va. 468, 56 
S. E. 834. 

Judicial Sale. — Where a decree fixes 
upon a defendant a personal liability 
tor whatever balance of a debt remains 
unpaid after crediting thereon the pro- 
ceeds of the sale of a tract of land 
decreed to be sold to pay the debt, 
the amount- of defendant's liability 
can not be ascertained until the land 
has been sold; and where, as in this 
case, the liability of the defendant is 
merely pecuniary, he has no right of 
appeal until the extent of his pecu- 
niary liability has been fixed, which 
can only be done after a sale of the 
land. This is not a case where a fixed 
pecuniary liability has been reduced by 
subsequent payments. Ritter Lumber 
Co. V. Coal Mountain Min. Co., 115 Va. 
370, 79 S. E. 322. 

A decree in such suit in favor of the 
plaintiff's attorney, for $75.00. to be 
paid out of the proceeds of the sale of 
the property as a part of the costs, 
being insufficient in amount to give 
this court jurisdiction, is not reviewa- 



Appeal and Error 



259 



ble here. Westinghouse Lamp Co. v, 
Ingram, 70 W. Va. 664, 74 S. E. 941. 

A set-off is equivalent to an action, 
and where the amount of a set-off dis- 
allowed by the trial court exceeds 
three hundred dollars, the amount in 
controversy is within the jurisdiction 
of the supreme court. Norfolk, etc., 
R. Co. V, Potter, 110 Va. 427, 66 S. 
E. 34. 

Taxes. — A tax is nothing more than 
a debt due by the citizen to the taxing 
power, and unless the right to impose 
the tax or the construction of the stat- 
ute under which it is imposed is called 
in question, or necessarily passed upon 
in the trial court, no appeal lies to 
the supreme court of Virginia from the 
judgment of the trial court imposing a 
tax. if the aggregate amount of the tax 
imposed is less than three hundred dol- 
lars. Schermerhorn v. Commonwealth, 
107 Va. 707, 60 S. E. 65. See Cohen v, 
Wolford, 111 Va. 812, 70 S. E. 850. 

If an assessor assesses land, which is 
not liable for taxes, the party aggrieved 
has a right to appear before the board 
of review and equalization and have 
such erroneous assessment corrected by 
said board, in the manner provided by 
§ 18 of chap. 29, Code 1906, as amended 
by chap 80, acts 1907. If said board 
should refuse to make the correction 
he can appeal to the circuit court. In 
the matter of such appeal, the circuit 
court acts judicially when it decides 
the question of the liability, or nonlia- 
bility, of the property to taxation, and 
the judgment of the circuit court is 
subject to review, upon writ of error, 
by the supreme court, when the taxes 
levied on such property amount to 
$100. or more. Copp v. State, 69 W. 
Va. 439, 71 S. E. 580. See post. TAX- 
ATION. 

Trespass. — In an action of trespass 
quare clausum fregit, the only damage 
claimed being the cutting of timber, 
and the plaintiff giving evidence of no 
other damage, and his evidence show- 
ing the value of the timber, at most, to 
be under $100, the appellate court has 



no jurisdiction of a writ of error. Dick- 
inson V, Mankin, 61 VV. Va. 429, 56 S. 
E. 824. 

In an action of trespass on the case 
for injury to real estate, where plaintiff 
and defendant agreed before trial that 
if plaintiff is entitled to any damages 
at all it shall be twenty-five dollars, 
and there is a verdict and judgment for 
defendant, there is no jurisdiction by 
writ of error in the supreme court. 
Clark v. Dower, 67 W. Va. 298, 68 S. 
E. 369. 

VaiUdity of Stock Subscription. — 
Where the validity of a stock subscrip- 
tion for more than $300 is drawn in 
question by a judgment for an assess- 
ment upon said stock for less than 
$300, the appellate court of Virginia 
has jurisdiction of a writ of error to 
said judgment. Elliott v. Ashby, 104 
Va. 716, 5!: S. E. 383, cited in Inter- 
national Harvester Co. v. Smith, 105 
Va. 683, 54 S. E. 859. 

Action on Note. — Where a suit on a 
note for less than $300 involves the 
plaintiff's right to recover also on two 
other notes given for parts of the same 
debt as the note sued on and together 
with it amounting to more than $300, 
so that judgment in the suit would be 
decisive as to the plaintiff's rights with 
respect to a sum greater than $300, the 
amount in controversy is sufficient to 
give the Virginia appellate court ju- 
risdiction on writ of error. Interna- 
tional Harvester Co. v. Smith, 105 Va. 
683, 54 S. E. »59. 

Suit for Protection of Lien. — When 
'he record plainly discloses that the 
oecuniary interest of the party ad- 
versely affected by a decree is not 
frreater than one hundred dollars, he 
ran not appeal, though the suit is not 
diiiectly for money but merely for 
projection of a lien by injunction and 
otherwise. McClaugherty v, Rumburg, 
71 W. Va. 98, 76 S. E. 137. 

Where the boundary between two 
tracts of land is incidental to the own- 
ership of the royalties on slate taken 
from the land, this court has not juris- 



260 



Appeal and Error 



dktion of an appeal from a decree de- 
termining the ownership of such roy- 
alties where they amount to less than 
three hundred dollars. Jones v, Buck- 
ingham Slate Co., 116 Va. 120, 81 S. 
E. 28. 

Judgment Not Calling in Question 
Any Action of Corporation Commis- 
sion. — The Stata Corporation Com- 
mission had prescribed no rate on cre- 
osote oil in steel drums. The commis- 
sion had, however, provided that "arti- 
cles not enumerated will be classified 
with analogous articles." In an action 
of assumpsit to recover excess freight 
charges on creosote shipped from Rich- 
mond to Norfolk, the only question set- 
tled by the judgment was to which of 
two different classes the creosote oil 
in drums belonged. Held: That the 
judgment did not in any way call in 
question any action of the State Cor- 
poration Commission and accordingly 
was not in contravention of § 156 of 
the Constitution. If it be conceded 
that the court plainly erred in its classi- 
fication, it was an error of judgment 
in the determination of the rights of 
the parties, which can not be reviewed 
by the Supreme Court of Appeals 
when the amount in controversy is less 
than $300. Chesapeake, etc., R. Co. v. 
Williams. 122 Va. 502, 95 S. E. 417. 

Loss Occasioned by Failure to Pre- 
sent Check. — Where the decree of the 
trial court decides that the holder of a 
certified check on a suspended bank 
had accepted it as a payment on a debt, 
and that, by reason of failure to pre- 
sent it in a reasonable time, he must 
sustain any loss occasioned by the fail- 
ure of the bank to pay in full, the 
amount in controversy in the supreme 
court, on appeal by such holder, is the 
amount of such loss, which is meas- 
ured by the amount of the check less 
any dividends which may be declared 
out of the assets of the bank. When 
it was decreed that the holder was the 
owner of the check, he became at once 
the owner of the interest represented 
by that check in the fund in the hands 



of the receivers of the bank for dis- 
tribution among its creditors. If this 
interest reduces the amount due on the 
check to less than $300, then the su- 
preme court has no jurisdiction to re- 
view decree of the trial court. Lamb 
V, Thompson, 112 Va. 134,. 70 S. E. 
507. 

3. Controversy of .Jurisdictional 
Amount Must Be Continued in 
AppeUate Court. 

" *The matter in controversy in the 
lower court must not only equal the 
jurisdictional amount, but the contro- 
versy in relation to matters of that 
value must be continued by the ap- 
peal.' 1 Enc. Digest Va. & W. Va. 
489." McClaugherty r. Rumburg, 71 
W. Va. 98, ^, 76 S. E. 137. 

F. JURISDICTION WHERE MAT- 
TERS NOT MERELY PECUNI- 
ARY. 

y^, In GeneraL 

Va. Const. § 88; W. Va. Const, art. 
VIII, § 3; Va. Code 1919, § 6337; 
Barnes Code, ch. 113, § 4. 

Disbarment of Attorney. — The Su- 
preme Court of Appeals has jurisdic- 
tion of a writ of error to a judgment 
of a circuit court disbarring or sus- 
pending an attorney from the practice 
of his profession. State v. Smith, 84 
W. Va. &9, 99 S. E. 332. 

Controversies Involving "The Life 
or Liberty of Any Persona." — A judg- 
ment imposing a fine upon a party for 
a contempt of court and giving him a 
reasonable time within which to pay it, 
but providing that if it is not paid, he 
shall be imprisoned, does not involve 
"the life or liberty of any persons," 
within the meaning of § 88 of the Vir- 
ginia constitution. The judgment be- 
ing for a fine from which the party 
may relieve himself, does not deprive 
the party of life or liberty. Forbes v. 
State Council, 107 Va. 853, 60 S. E. 81. 

Controversy Concerning a Way. — If, 
in an action of trespass on the case 
for injury to real estate, defendant does 
not plead the general issue, but sets 



Appeal and Error . 



261 



up by special plea the right to a pri- 
vate way by prescription over plain- 
tiff's land, such plea does not convert 
the plaintiff's action into a controversy 
concerning a way, within the meaning 
of § 3 of art. 8, Const, of West Vir- 
ginia, so as to entitle him to a writ of 
error to the supreme court, when the 
damages claimed for the trespass is 
less than one hundred dollars. Clark 
V. Dower, 67 W. Va. 298, 68 S. E. 369. 
See ante, "Constitutional and Statutory 
Provisions," VII. 

The validity of a by-law of a corpo- 
ratioii purporting to make the holders 
of its fully paid and nonassessable 
shares of the capital stock liable to 
periodical assessments for payment of 
its debts and operating expenses, is 
a subject of controversy within the 
appellate jurisdiction of the supreme 
court of appeals. Roush v, Longdale 
Tel. Co., 78 W. Va. 136, 88 S. E. 623. 

3. Controversies Touching the title or 
Boundaries of Land. 

a. In GeneraL 

The statutes give to any person who 
thinks himself aggrieved by any judg- 
ment, decree, or order "in a contro- 
versy concerning the title to or bound- 
aries of land" the right to appeal re- 
gardless of the amount in controversy. 
Va. Code 1919, § 6337; Barnes Code 
ch. 113, § 4. Steinman v, Clinchfield 
Coal Corp., 121 Va. 611, 632, 93 S. E. 
684. 

The statute means "involving title or 
boundaries directly in issue and di- 
rectly affected by the judgment." 
Clark V, Dower, 67 W. Va. 298, 306, 68 
S. E. 369. 

Illustrative Cases. — A decree for sale 
of land in a partition suit, or for the 
appointment of a receiver, whereby 
change is made in possession or con- 
trol of property, judgments in actions 
of unlawful entry and detainer, and de- 
crees in suits relating .to trust deeds 
upon real estate securing less than the 
minimum pecuniary jurisdiction of the 
court, all concern the title of land. 



Steinman v. Clinchfield Coal Corp., 121 
Va. 611, 633, 93 S. E. 684. 

Boundary of Land. — See ante, "Con- 
stitutional and Statutory Provisions," 
VII; "Miscellaneous Instances," V, E, 

2, J, (5). 
Trespass. — An action of trespass 

quare clausum fregit is not a contro- 
versy concerning the title or boundary 
of land, giving jurisdiction in this court 
for a writ of error therein. Dickinson 
V. Manldn, 61 W. Va. 42«, 56 S. E. 
824. See ante, "Miscellaneous In- 
stances," V, E, 2, j, (5). 

Condemnation of Land. — A proceed- 
ing to condemn land for public use is 
a controversy concerning the title of 
land, so as to give jurisdiction for a 
writ of error. Bluefield v. Bailey, 62 
W. Va. 304. 57 S. E. 805, overruling 
Wheeling Bridge, etc., Co. v. Wheel- 
ing Steel, etc., Co., 41 W. Va. 747, 24 
S. E. 651, and White Oak R. Co. v. 
Gordon, 61 W. Va. 519, 56 S. E. 837. 

b. Unlawful Detainer. 

An appeal lies in an action of un- 
lawful detainer, which is an element of 
title. Dickinson v, Mankin, 61 W. Va. 
429, 434, 56 S. E. 824. 

h. Suits to Enforce a Lien on Land. 

See ante, "Suits to Subject Property 
to Lien of Judgment," V, E, 2, j, (1). 

A suit to subject land to the lien of 
a judgment is not a suit for the recov- 
ery of land. Steinman v, Clinchfield 
Coal Corp., 121 Va. 611, 633, 93 S. E. 
684. 

4. Right to Levy Tolls or Taxes. 

See ante, "Miscellaneous Instances," 
V, E, 2, j, (5). 

5. Controversies Touching the Consti- 

tutionality of a Law. 

Va. Const. § 88; W. Va. Const, art. 
VIII, § 3; Va. Code 1919, § 6336; 
Barnes Code chap. 113, § 3. 

The appellate jurisdiction of the su- 
preme court of appeals is not deter- 
mined by the value of the subject mat- 
ter of the controversy, in cases "in- 
volving the constitutionality of a law/* 



262 



. Appeal and Error 



Baer v. Gore, 79 \V. Va. 50, 90 S. E. 
530; Ward Lumber Co. v. Henderson- 
White Mfg. Co., 107 Va. 626. 628, 59 
S, E. 476; Underwood Typewriter Co. 
V. Piggott, 60 W. Va. 532. 535. 55 S. 
E. 664. 

Instances. — Ward Lumber Co. v, 
Henderson-White Mfg. Co., 107 Va. 
626. 59 S. E. 476. 

Where the trial court, at the instance 
of the plaintiff in error, instructed the 
jury that a city ordinance, under which 
he sought to justify his action, was 
valid and constitutional, and no excep- 
tion was taken to that instruction, all 
question as to the validity of the or- 
dinance was claimed from the case, 
and he was left with its full protection 
as a defense. To a judgment rendered 
in such case, no writ of error lies on 
the ground that the constitutionality 
of the ordinance is drawn in question. 
Holdsworth r. Crowder, ill Va. 663, 
69 S. E. 935. 

Election Controversy. — Where a 
just determination of a controversy be- 
tween opposing candidates, arising out 
of a canvass of primary election re- 
turns, appealed to the circuit court un- 
der § 2622a. ch. 3, Barnes Code, vir- 
tually depends on the proper interpre- 
tation of a law charged to be invalid 
as in violation of the constitution, this 
court has jurisdiction to review the 
proceedings on writ of error. Baer v. 
Gore, 79 W. Va. 50, 90 S. E. 530. 

A judgment founded upon kn erro- 
neous construction of a statute, which 
makes its enforcement conflict with 
constitutional guaranties, involves the 
constitutionality of a law, and is, 
therefore, reviewable, without regard 
to the amount in controversy. Under- 
wood Typewriter Co. r. Piggott, 60 
W. Va. 532, 55 S. E. 664. 

Constitutionality Already Estab- 
lished. — Where the only ground of ju- 
risdiction of this court is the constitu- 
tionality of a statute, the validity of 
which as been established by former 
decisions of this court, the writ of er- 
ror will be dismissed for want of juris- 



diction. Western Union Tel. Co. r. 
White, 113 Va. 421, 74 S. E. 174. 

Jurisdiction to Decide Case on Mer- 
its. — Under the provision of § 88 of the 
constitution of Virginia, where the ju- 
risdiction of the supreme court depends 
solely on the fact that the constitu- 
tionality of a statute is involved, the 
supreme court can not decide the case 
upon its merits, unless the contention 
of the appellant upon the constitutional 
question is sustained. Norfolk, etc., R. 
Co. V. Dixie Tobacco Co., Ill Va. 813, 
69 S. E. 1106; Adams Exp. Co. v. 
Charlottesville Woolen Mills. 109 Va. 
1, 63 S. E. 8. 

Where the trial court has held an 
act of assembly to be constitutional, 
and the only ground of appeal is the 
unconstitutionality of the act, if the 
appellate court finds the act to be con- 
stitutional, that is the only question it 
can consider under the express man- 
date of the constitution. Western 
Union Tel. Co. r. Chiles, 107 Va. 60. 
57 S. E. 587. 

Error committed in the construction 
and interpretation of a statute will not 
of itself confer jurisdiction upon this 
court, but the constitutionality of the 
statute, as distinguished from its in- 
terpretation, is the source of appellate 
jurisdiction. Hulvey 7\ Roberts, 106 
Va. 189, 55 S. E. 585, cited in Ward 
Lumber Co. v. Henderson-White Mfg. 
Co., 107 Va. 626. 59 S. E. 476. 

Question Must Be Raised in Trial 
Court. — Hulvey r. Roberts, 106 Va. 
18«, 55 S. E. 585. 

Justice's Judgment — No appeal lies 
directly to the supreme court of ap- 
peals from a judgment of a justice of 
the peace involving the constitutional- 
ity of a law. Southern R. Co. v. Hill, 
106 Va. 501, 56 S. E. 278. 

7. Controversies Touching the Probate 
of Wills. 

Va. Const. § 88; W. Va. Court Act. 
iVIII, § 3; Va. Code 1919, § 6336; 
' Barnes Code ch. 113, § 4. 



Appeal and Error 



263 



8. Controversies Touching Mills, Road- 

ways, Ferries or Landings. 

Va. Const. § 88; VV. Va. Court Act, 
VIII, § 3; Va. Code 1919, § 6336; 
Barnes Code ch. 113, § 4. 

9. Mandamus, Habeas Corpus, and 
Prohibition Cases. 

Va. Const. § 88; W. Va. Court Act, 
VIII. § 3; Va. Code 1919, § 6336; 
Barnes Code ch. 113, § 5. 

VI. LIMITATIONS. 

A. LAW GOVERNING. 

The right of appeal depends upon 
the law in force at the time the ap- 
peal is granted, and not when the judg- 
ment was rendered. Allison v. Wood, 
104 Va. 765, 769, 52 S. E. 559. 

B. CHANGES IN LAW. 

See ante, "In Virginia," V, E, 1, a. 

C. STATUTES MANDATORY. 

The statutes fix the time within which 
bills of review may be filed or appeals 
taken, and if litigants permit this time 
to elapse without availing themselves 
of the remedies provided for their relief, 
they are without remedy. The case 
is not different from any other where 
a remedy is barred by the statute of 
limitations. Johnson v. Merritt, 125 
Va. 1€2, 99 S. E. 785. 

"Statutes of limitation are deemed 
statutes of repose, and this conception 
of such statutes applies with peculiar 
force to limitations upon the right of 
appeal. Tyson v. Scott, 116 Va. 243, 
81 S. E. 57. 

F. PERIOD OF LIMITATION. 

1. Final Decrees and Judgmients. 

a. In Virginia. 

One Year.— Va. Code 1919, §§ 6337, 
6355. 

Under the provisions of § 3474 of the 
Code (Va. Code 1919, § 6355), if the 
decree appealed from is a decree re- 
fusing a bill of review to a final 
decree rendered more than six months 
prior thereto, the party aggrieved 



has six months from the date 
of the decree refusing such bill of re- 
view within which to perfect his ap- 
peal, but if the bill of review is refused 
within six months after the final de- 
cree, the time for perfecting an appeal 
from the final decree is the same as 
if no bill of review had been refused. 
The right of appeal from a final decree 
within one year is not diminished or 
impaired by the refusal of a bill of 
review thereto within six months. 
Adams v. Booker, 114 Va. 796, 77 S. 
E. 611. 
b. In We«t Virginia. 

Present Rule— Eight Months.— W. 
Va. Acts 1921. Reg. Sess. p. 168 
amending Code, ch. 135, § 3. 

Ponner Rule — One Year.— Under 
Barnes Code, ch. 135, § 3, the period 
of limitation was one year. 

The filing in the clerk's office of the 
circuit court of a petition for an ap- 
peal or writ of error and a bond, pur- 
suant to section 5, chapter 135, of the 
Code, within the period of one year, 
will not excuse compliance with the 
provision of section 3, of said chapter, 
or stop the running of the statute of 
limitations. Such petition must be 
presented to this court or to a judge 
thereof in vacation within one year 
from the date of the decree or judg- 
ment complained of. Spangler v. 
Vermillion, 80 W. Va. 75, 92 S. E. 449. 

A decree rendered in a partition suit, 
establishing a last deed and setting a 
question of disputed title can not be 
reviewed by this court on an appeal 
from a final decree, taken more than 
a year after the former was rendered. 
Wright V. Pittman, 73 W. Va. 81, 79 
S. E. 1091. 

A decree construing a deed, and ad- 
judicating that the widow of the 
grantor took and held thereunder the 
exclusive use and enjoyment of per- 
sonal estate for her natural life, and 
that upon her death the plaintiff as 
surviving grantee was entitled in re- 
mainder to said property and had the 



264 



Appeal and Error 



exclusive right to the possession and 
enjoyment thereof, and referring the 
cause to a commissioner to report upon 
the necessary facts to carry such de- 
cree into execution is an appealable 
decree; and the appellate court has no 
jurisdiction after two years, upon an 
appeal from a subsequent decree ad- 
judging the plaintiff not entitled to 
the relief prayed for and dismissing the 
bill, to review such former decree. 
Roush V, Hyre, 62 W. Va. 120, 57 S. 
E. 368. 

A decree in a suit by an executor 
against devisees to convene creditors 
and administer the assets for their pay- 
ment made on a report of debts by a 
commissioner, which decrees debts 
against the estate and subjects its lands 
to their payment, must be appealed 
from within two years. Trail v. Trail, 
56 W. Va. 594. 49 S. E. 431. 

8. Interlocutory Decrees and Jud^- 
nvents. 

While it is permissible, it is not 
necessary to appeal from certain inter* 
locutory decrees at the time they are 
rendered. The party may appeal at 
any time within a year after a final 
decree has been rendered in the cause, 
if all the other requisites for appeal ex- 
ist. Hess V. Hess, 108 Va. 483, 62 S. 
E. 273. 

3. Calculation of Period. 

The time between the presentation 
of a petition for appeal and the date 
of the order granting the appeal must 
be excluded from the one year given 
appellant, under Code 1904, § 3474 
(Va. Code 1919, § 6385), after final 
decree, within which to perfect an ap- 
peal. Adams v, Booker, 114 Va. 796, 
77 S. E. 611. 

Under subsection 8 of § 1 of chapter 
135 of the West Virginia Code, 
a decree overruling a motion to quash 
an attachment is an interlocutory but 
appealable decree, and does not pre- 
clude a renewal of the motion at the 
same or any subsequent term before 



final decree, and in a suit in which an 
attachment is sued out and some of 
the defendants appear and move to 
quash the attachment, and their mo- 
tion is overruled, a creditor who files 
a petition under § 23, chapter 106, of 
the Code, disputing the validity of the 
plaintiff's attachment, and stating a 
claim to or interest in the property at- 
tached, and is made a formal party 
thereto, has the right to move to quash 
said attachment, and the statute of 
linritations as to his right to appeal be- 
gins to run at the date of the decree, 
overruling his motion. Elkins Nat. 
Bank v. Simmons, 57 W. Va. 1, 49 S. 
E. 893. 

Excluding First Day in Computing 
Tune. — School iBoard v, Alexander, 126 
Va. 407, 101 S. E. 349. 

Same — Change of Rule. — Under Code 
1919, § 5, cl. 8, restoring Code 1904, § 
5, as it read prior to amendment by 
Acts 1916, c. 290, the first day is to be 
counted in computing the time. School 
Board v. Alexander, 126 Va. 407, 101 
S. E. 349. 

G. NO INQUIRY INTO MERITS 
AFTER STATUTORY PERIOD 
ELAPSED. 

See ante, "Statutes Mandatory," 
VI, C. 

VI^. RAISING AND RESERVING 
GROUNDS OF REVIEW. 

A. IN GENERAL. 

See )past, ^'Objections Not Raised 
Below," XIV, F, 16; EXCEPTIONS. 
BILL OF. 

Theory of Case.— See post, "Theory 
of Case in Lower Court," XIV, E^. 

Demand for Gtieater Detail in Bill of 
Particular. — To be available as ground 
of error in the appellate court, for re- 
fusal of the trial court to grant it, a 
demand for greater detail and specifi- 
cation in a bill of particulars, must be 
certain and definite. Parkersburg, 
etc.. Paper Co. v. United States Fi-- 
delity, etc., Co., 81 W. Va. 749, 95 S. 
E. 783. 



Appeal and Error 



265 



B. MOTION PRESENTING OB- 
JECTION. 

Necessity of Motion Presenting Ob- 
jection. — ^The plaintiff, on filing by de- 
fendant of his counter affidavit under 
section 46, chapter 125 of the Code, is 
then entitled to judgment for the sum 
thereby acknowledged to be due him, 
but if he does not then or at any time 
before trial elect to do so, he can not 
when the pleadings do not warrant 
and recovery by him assign his neg- 
lect to take judgment as ground for 
reversal on writ of error prosecuted 
by him in this court. Philadelphia Co. 
p. Shackelford. 83 W. Va. ZSO, 98 S. 
£. 568. 

Evidence was admissible for the 
purpose of showing a local custom or 
usage, and if followed by evidence 
sufficient to charge the party with 
knowledge thereof, would have affected 
the contract in question. It was not 
so followed, nor was any motion made 
to strike it out, nor any instruction 
asked to disregard it. When offered 
it was admissible for the purpose for 
which it was offered. The objection 
to its admissibility was general. No 
grounds were stated. Held: That un- 
der these circumstances, appellant 
could not be permitted to say that the 
reception of the evidence might have 
affected the verdict. Rosenberg v. 
Turner, 124 Va. 769, 98 S. E. 763. 

Judgment on Donurrer to Evidence. 
—A judgment rendered upon a de- 
murrer to evidence, where no motion 
was made in the court below to set 
aside the verdict, will not be reversed 
by this court for excessiveness of the 
jury's verdict. Bond r. National Fire 
Ins. Co., 83 W. Va. 105, 97 S. E. 692. 

Motion to Exclude Evidence- 
Waiver. — Where testimony is admitted 
proving that plaintiff, several months 
after his injury, was confined to his 
bed for two or three weeks, and there 
is no testimony showing such con- 
finement to be the natural and direct 
result of the injury, a motion to ex- 



clude it should be sustained. Such 
motion is not waived by failure to 
renew it after the taking of evidence 
is concluded, where the point is saved 
by a special bill of exceptions. Bart- 
ley V. Western Maryland R. Co., 81 
W. Va. 795, 95 S. E. 443. 

I 

Objection to Question Eliciting Im- 
proper Evidence and Exception to the 
Overruling Thereof. — A proper foun- 
dation is laid for an assignment of error, 
as to admission of improper evidence, 
by an objection to the question elicit- 
ing the evidence and an exception to 
the overruling of the objection. To 
make the error available, it is not nec- 
essary to move to strike out the answer 
and except to the overruling of the 
motion to strike it out. Fisher v. Flan- 
agan Coal Co., 86 W. Va. 460, 103 S. 
E. 359. 

C. MOTION FOR NEW TRIAL. 

Not Necessary in Virginia. — Va. 
Code 1919, § 6254. 
Motion at Law and In Chancery. — 

The verdict of a jury on the law side 
of the court was certified to the 
chancery side. A motion was made 
before the law judge to set aside the 
verdict and for new trial. Held, 
such motion confers jurisdiction on 
the supreme court of appeals on a writ 
of error issued to the circuit court. 
Norfolk, etc., R. Co. v. Allen & Sons, 
122 Va. 603, 95 S. E. 406. 

In Wvest Virginia. — In order to ob- 
tain a review of the action of a circuit 
court upon a trial had before a jury 
it is necessary that the record in the 
court below show that the complain- 
ing party made a motion to set aside 
the verdict of the jury, that the same 
was overruled, and that he took proper 
exception thereto. Payne v. Riggs, 80 
W. Va. 57, 92 S. E. 133. 

D. MOTION FOR CORRECTION 
OF ERROR IN SAME COURT. 

Va. Code 1919, § 6334; Barnes Code, 
ch. 134, § 6. 



266 



Appeal and Error 



VII. TRANSFER OF CAUSE. 

A. IX GENERAL. 

Premature Appeal. — See ante, 
"Necessity for Existence of Real Con- 
troversy," I, B. 

In case either party desires to ap- 
peal a chancery case heard in open 
court he shall, within 90 days after 
final or appealable decree, require the 
transcipt of evidence which, when 
furnished, shall have the force and 
effect now accorded to depositions in 
chancery causes. West Vaj. Code 
Supplement 1918, § 4908a. 

B. STAY OF PROCEEDINGS. 

The court or judge allowing an ap- 
peal or writ of error may award su- 
persedeas to stay proceedings in 
whole or in part. Va. Code 1919, §§ 
4935, 6348 amended by Acts 1920, p. 
416 (Pollard's Code 1920, p. 308). 6349; 
Barnes Code, ch. 135, §§ 4, 12. ^See 
post, ''Rejection of Appeal." VII, Ej^. 

The clerk of the supreme court of 
appeals shall issue any supersedeas 
which may be awarded. Va. Code 
1919, § 4936. 

How Person Presenting Petition for 
Appeal, etc.. May Procure Suspension 
of Execution of Judgment. — Va. Code 
1919, § 6338. 

West Virginia Statute. — Barnes 
Code, ch. 160, sec. 6, provides: "A writ 
of error, awarded under this chapter 
to any judgment, shall operate as a 
stay of proceedings in the case, until 
the decision of the court of appeals 
therein." 

Same — Discretion of Court — Re- 
quisites. — A stay of proceedings in a 
suit provided by § 6, chapter 136, W. 
Va. Code, rests in the sound discretion 
of the court. To warrant the stay 
it must be essential to justice, and it 
must be that the judgment of decree by 
the other court will have legal opera 
tion and effect in the suit in which the 
stay is asked, and settle the matter of 
controversy in it. Dunfee v. Childs, 
59 W. Va. 225, 53 S. E. 209. 



Order Not Stasring Proceedings.— An 

order of a judge, endorsed on a pe- 
tition for an appeal from, and su- 
persedeas to, an order refusing to dis- 
solve an injunction, the prayer of 
which is "that an appeal and super- 
sedeas may be allowed" the petitioner 
"staying said injunction," reading as 
follows: "Appeal and supersedeas al- 
lowed as prayed for in the foregoing 
petition," does not, upon a proper con- 
struction thereof, purport to be an or- 
der staying the injunction. Its legal 
purport is merely the granting of an 
appeal and supersedeas. Powhatan 
Coal, etc., Co. v. Ritz, 60 W. Va. 395. 
56 S. E. 257. 

In Criminal Case.— Va. Code 1919, 
§ 4930. amended by Acts 1920, p. 241. 
Pollard's Code 1920, p. 219. Barnes 
Code, ch. 160, sec. 2. 

Staying Execution of Judgment af- 
ter Demand in Habeas Corpus Pro- 
ceedings. — Barnes Code, ch. Ill, sec. 
12. 

C. NOTICE OF APPEAL. 

Notice of an appeal is necessary. 
Dunfee r. Childs, 59 W. Va. 225, 53 S. 
E. 209. 

D. PETITION FOR APPEAL, ETC. 

^. In General. 

Nature. — The petition for a writ of 
error is in the nature of a pleading. 
American Locomotive Co. v. Hoff- 
man. 105 Va. 343, 54 S. E. 25; Worley 
V. Mathieson Alkali Works, 119 Va. 
862, 89 S. E. 880; Sutherland v. Wamp- 
ler, 119 Va. 800, 89 S. E. 875. 

Petition for Appeal in Lower Court 
and Order of Rejection Sufficient in 
Supreme Court of Appeals. — By sec- 
tion 20, chapter 25, Acts 1907, where 
upon appeal the judge of the circuit 
court deems the judgement or order of 
the intermediate court, plainly right, 
and rejects the appeal on this ground, 
the petition of the appellant to the 
circuit court, and such order of rejec- 
tion, may be presented to this court 
for an appeal from such order of re- 



Appeal and Error 



267 



jection with the same effect as upon 
original petition to this court therefor 
and no other petition is required. 
Rosin Coal Land Co. v. Martin, 81 W. 
Va. 33. 94 S. E. 358. 

Time for Presenting Petition. — See 
ante, "Period of Limitation." VL F. 

2. Form and Requisites. 

a. In GteneraL 

Should State Grounds for Reyersal. 

— A ground of error intended to be 
relied on for reversal should be men- 
tioned in the petition for the writ. 
City Gas Co. v. Webb, 117 Va. 369, 84 
S. E. 645. 

Where Appieal Has Been Previously 
Dismissed. — When an appeal and su- 
persedeas have been dismissed under 
rule 3, of the West Virginia supreme 
court, a new petition reciting the fact 
of the former petition and allowance 
and dismissal and referring to the as- 
signment of error contained in the 
former petition and making them a 
part of the new petition is sufficient 
upon which to allow an appeal, al- 
though such new petition prays "That 
said order of dismissal may be set 
aside, that said appeal and super- 
sedeas heretofore allowed may be 
renewed." Swiger v. Swiger» 58 W. 
Va. 119. 52 S. E. 23. 

c. Assignment of Error. 

(1) Necessity and General Considera- 
tion. 

A petition for an appeal, writ of 
error, or supersedeas shall assign er- 
rors. Va. Code 1919, §§ 4933, 6346. 
Bacnes Code, ch. 135, § 8. 

The purpose of the statutory require- 
ment is to enable the court and op> 
posing counsel to see on what points 
the petitioner's counsel intend to seek 
a reversal of the judgment or decree 
and to limit the discussion of the cas^ 
on appeal to those points. First Nat. j 
Bank v. Trigg Co., 106 Va. 327, 56 S. ' 
E. 158; Norfolk, etc., R. Co. r. Bondu- 
rant. 107 Va. 515, 59 S. E. 1091. Bei/ 



mont V. McAllister, 116 Va. 285, 290, 
81 S. E. 81. 

The appellate court will not search 
the record for errors not pointed out 

in the petition. Lorillard Co. v. Clay, 
127 Va. 734, 104 S. E. 384. 

Only Points Raised by Assignments 
Considered. — Where an instruction is 
not free from all exception, but is not 
open to the objection urged against 
it in the assignments of error, the ob- 
jection made in the assignments of 
error is the only objection which the 
supreme court of appeals will con- 
sider. Charlottesville v. Jones, 123 
Va. 682, 97 S. E. 316. 

A demurrer to the evidence and its 
incident, excepted to, but not assigned 
as error, can not be considered on ap- 
peal. Cooper V. Norfolk, etc., R. Co., 
125 Va. 73, 99 S. E. 606. 

Awarding Mandamus. — Objection 
can not be made in the appellate court 
to the awarding of a mandamus where 
not mentioned in the petition for the 
writ of error. Rinehart, etc., Co. v. 
Mc Arthur, 123 Va. 556, 96 S. E. 829. 

"When the appeal is from the whole 
decree, errors in it, not assigned in the 
petition for the appeal, may be as- 
signed in the briefs, and may even be 
noticed by the court and acted upon 
without any assignment thereof." Dent 
V. Pickens. 59 W. Va. 274, 276, 53 S. E. 
154. 

"But when the appeal allowed does 
n6t extend to ttik whole decree, the 
court has before it, and within its ju- 
risdiction, only those matters as to 
which the appeal was allowed. All ad- 
judications as to which no appeal was 
allowed remain in the court below, 
within its jurisdiction, and constitute 
proper subjects for its further action.** 
Dent V. Pickens, 59 W. Va. 274, 276, 
53 S. E. 154. 

Dismissal of Appeal. — Where there 
are no assignments of error within the 
meaning of the statute the appeal will 
be dismissed. Moore v. Harrison, 114 
Va. 424, 76 S. E. 920. 



268 



Appeal and Error 



Errors Assigned for First Time in 
Reply Brief. — Errors assigned for the 
first time in the reply brief of the 
plaintiff in error will not be considered 
by the appellate court. American Lo- 
comotive Co. V, Hoffman, 103 Va. 343, 
54 S. E. 25; Newport News, etc.. Elect. 
Co. V, Bickford, 105 Va. 182, 183, 52 S. 
E. 1011; Sands v. Stagg, 105 Va. 444, 
452, 52 S. E. 633, 54 S. E. 21; Lorillard 
Co. r. Clay, 127 Va. 734, 104 S. E. 384. 

A suggestion in the petition that 
other errors are to be assigned is in- 
effectual to reserve the right to as- 
sign errors in a reply brief. American 
Locomotive Co. v. Hoffman, 105 Va. 
343, 54 S. E. 25. 

By Whom Assigned. — ^The supreme 
court will not consider errors assigned 
by a party who has not appealed nor 
been made a party to an appeal taken 
by another. Virginia Iron, etc., Co. v. 
Bond, 111 Va. 319, 68 S. E. 1005. 

On appeal by trust creditors, from 
a decree denying them relief, parties 
defendant served with process or who 
appeared in the case prior to the de- 
crees of sale, confirmation and fore- 
closure, but made no defense, and who 
did not apply to the court below for 
relief, pursuant to §§ 5 and 6, of chap- 
ter 134, Code 1913, within the time 
limited thereby, will not be heard to 
complain of supposed errors in such 
prior decrees, affecting property not 
covered by such deed of trust. Geb- 
hart V, Shrader, 75 W. Va. 159, 83 S. 
E. 925. 

(8) Sufficiency. 

(a) In Genteral. 

A petition for a writ of error is suf- 
ficient if the points upon which reliance 
is had for a reversal are clearly stated 
and leave no doubt as to the questions 
presented for consideration, although 
it does not specifically state that the 
ruling of the trial court on this point 
or on that is assigned as error. Nor- 
folk, etc., R. Co. V. Bondurant, 107 Va. 
515, 59 S. E. 1091. 



A petition for writ of error which 
points out specifically the errors 
claimed to have been committed by 
the court below, and in such manner 
as to enable the appellate court and the 
opposing counsel to see on what points 
counsel for the petitioner intends to 
seek a reversal, is sufficient. Belmont 
V, McAllister, 116 Va. 285, 81 S. E. 81. 

Errors Must Be Pointed Out Clearly 
and Distinctly. — A petition for a writ 
of error is in the nature of a pleading, 
and must state clearly and distinctly 
the errors relied on to reverse the 
judgment. Worley v, Mathieson Alkali 
Works, 119 Va. 862, 89 S. E. 880; 
Ewell V. Brock, 120 Va. 475, 91 S. E. 
761; Sutherland v. Wampler, 119 Va. 
800, 89 S. E. 875; Washington, etc., R. 
Co. V, Cheshire, 109 Va. 741, 65 S. E. 
27; American Locomotive Co. v. Hoff- 
man, 105 Va. 343, 54 S. E. 25; First 
Nat. Bank v, Trigg Co., 106 Va, 327, 
341. 56 S. E. 158. 

Parties who complain of errors in 
the trial court must point them out 
with such certainty as will enable this 
court to say from the assigrnment as 
made whether or not the alleged er- 
ror has been duly assigned. The 
supreme court of appeals will neither 
presume error nor enter upon a voy- 
age of discovery through the record to 
ascertain whether or not error has been 
committed. Virginia Iron, etc., Co. 
V, Odie, 128 Va. 280, 105 S. E. 107. 

Substantial Compliance with Statute. 
—Section 3464 of the Va. Code of 1904 
(section 6346, Code of 1919) provides 
that a petition for an appeal, writ of 
error, or supersedeas shall assign* er- 
rors. The petition in the instant case 
did not in specific terms comply with 
the section, but it contained a very 
clear and comprehensive discussion of 
the various rulings of the court upon 
(he admission and exclusion of evi- 
dence, the granting and refusing of 
instructions, and a motion to set aside 
the verdict and grant a new trial. 
These rulings were shown and chal- 



Appeal and Error 



269 



lengcd by separate bills of exceptions 
appearing in the record and specifi- 
cally referred to in the petition. Held: 
That the petition substantially com- 
plied with the statute, and a motion 
for dismissal was accordingly denied. 
Jeffress v, Virginia R., etc., Co., 127 
Va, 694, 104 S. E. 393. 

Same— Right Barred by Linutations. 
—The discussion in a petition for a 
writ of error may be treated as a sub- 
stantial compliance with the statute 
requiring errors to be assigned in the 
petition, when the motion to dismiss 
for failure to comply with the statute 
is not made until after the right of 
appeal is barred by limitation. New 
York Life Ins. Co. r. Franklin, 118 Va. 
418, 87 S. E. 584. 

Must Be Based on Matters in the 
Record. — See Moore v, Harrison, 114 
Va. 424, 427, 76 S. E. 920. 

Assignments Must Cc^respond to 
Those Made in Lower Court — A 
party to a suit in chancery can not 
except to a commissioner's report on 
one ground in the trial court, and rely 
upon a wholly different ground in the 
appellate court, unless the objection 
made in the appellate court is appar- 
ent upon the face of the report. Wal- 
ter V, Whitacre, 113 Va. 150, 73 S. E. 
984. 

Where both parties to an action of 
ejectment proceed with the case in the 
trial court upon the theory that it is 
a case of common source of title, the 
defendant will not be permitted, on a 
writ of error awarded the plaintiff, to 
deny that it was a case of "common 
source,"' Smith v. Stanley, 114 Va. 
117, 75 S. E. 742. 

A defendant can not assign one ob- 
jection to the mode of service of proc- 
ess in the trial court and in different 
one in the appellate court where the 
latter could have been corrected in the 
trial court if attention had been called 
to it. Water Front Coal Co. v. Smith- 
field Marl, etc., Co., 114 Va. 482, 76 S. 
E. 937. 



(b) In Particular Instances. 

Assignments Held Insufficient. — 
A statement in a petition for a writ 
oif error, relating to fourteen alleged 
errors, that the petitioner "is advised 
that errors were committed to its 
prejudice by said rulings of said court" 
is not a compliance with the rule that 
a petition for a writ of error, being 
in the nature of a pleading, must state 
clearly and distinctly the errors relied 
on to reverse the judgment. Honaker 
Lumber Co. z/. Call, 119 Va. 374, 89 S. 
E. i506. 

A statement in a petition for a writ 
of error that "without discussing in de- 
tail the instructions asked for and re- 
fused by the court, it is submitted that 
they expressed correctly the several 
propositions stated in them, and that 
there was evidence supporting or tend- 
ing to support them,'' is not a sufficient 
assignment of error, eiiher under § 
3464 of the Code, or Rule 2 of the 
supreme court. Washington, etc., R. 
Co. V. Cheshire, 109 Va. 741, 65 S. E. 
27. 

Specification of Evidence Objected 

to. — ^To obtain the benefit of errors in 
rulings upon evidence admitted or re- 
jected, the complaining party must 
specify them. The court will not 
search the transcript of the evidence 
for ^hem. Angrist v, Burk, 77 W. Va. 
192, 87 S. E. 74; McKinney v. McKin- 
ney, 77 W. Va. 58, 87 S. E. 928. 

An assignment of error' that the 
court below erred, "in admitting, over 
defendant's objections, certain illegal 
evidence oflFered by the plaintiff," will 
not be considered, where neither in 
the petition nor in brief for defendant 
is such evidence pointed out. Adams 
Exp. Co. V. Allen, 125 Va. 530, 100 S. 
E. 473. 

Where a stenographic report of evi- 
dence is made part of the certificate 
of evidence upon a motion for a new 
trial, and it shows objections to ques- 
tions or evidence, and rulings of the 



270 



Appeai. and Error 



court thereon, and that such rulings 
were excepted to, and the particular 
question or evidence complained of is 
specified distinctly in the motion for 
a new trial, or in an assignment of er- 
ror, or in brief of counsel, so that the 
appellate court can readily and safely 
find the particular question or evi- 
dence to which the exception relates, 
the appellate court will consider the 
matter excepted to, though there is no 
formal bill of exceptions thereto; but 
such matter will not be considered 
without such specification, even though 
such report of evidence notes such 
objection and exception. Bond v. Na- 
tional Fire Ins. Co., 77 W. Va, 736, 
88 S. E. 389. 

A certificate of exception to the 
testimony of a witness showed in gen- 
eral terms that counsel objected to 
the introduction of the witness's testi- 
mony. As there were fifteen questions 
and answers, this was entirely insuf- 
ficient to sustain the exception. The 
exceptor should designate the particu- 
lar questions and answers his excep- 
tions relate to. White Sewing Mach. 
Co. V, Gilmore Fur. Co., 128 Va. 630, 
105 S. E. 134. 

Question to Witness. — It is not suf- 
ficient to say that the trial court erred 
in permitting a designated question to 
be asked a witness, unless the error 
is manifest, or it is pointed out 
wherein the error consists. Virginia 
Iron, etc., Co. v. Odle, 128 Va. 
280, 105 S.'E. 107. 

Instructions. — Where the grounds of 
objections to instructions are not set 
forth with sufficient certainty, they 
will not be considered by the ap- 
pellate court. Rust V, Reid. 124 Va. 1, 
97 S. E. 324. Columbia Amusement 
Co. V, Pine Beach Inv. Corp., 109 Va. 
325. 63 S. E. 1002. 

An assignment of error that the 
verdict of the jury should be set 
aside because the court erred in 
giving instructions 1 and 12, in- 
clusive, for the proponents, for 



reasons apparent on the face of 
those instructions and because the in- 
structions were not applicable to the 
evidence in the case, will not be con- 
sidered because it does not point out 
the error complained of. Rust r. Reid, 
!24 Va. 1, 97 S. E. 324. 

The question of whether a particular 
feature of an instruction is erroneous 
is " not presented for decision to the 
appellate court, where no objection is 
made to the instruction on this ground 
by the assignments of error. Swift & 
Co. V, Hatton, 124 Va. 426, 97 S. E. 
788. 

An assignment of error, upon the 
refusal of an instruction, as follows: 
"The petitioner submits that this in- 
struction should have been given," 
was held insufficient. Lorillard Co. 
V. Clay, 127 Va. 734, 104 S. E. 384. 

An assignment of error that the 
evidence in the case did not support 
the latter parts of four lengthy in- 
structions, and stating that the evi- 
dence had been so fully discussed that 
petitioner deemed it unnecessary to 
discuss it again under each instruc- 
tion, is insufficient. It is not suf- 
j ficient to say of ah instruction simply 
that the latter part of it is not justified 
by the evidence, and to make the same 
objection in gross to four lengthy in- 
structions aggravates the difficulty. 
Lorillard Co. v. Clay, 127 Va. 734, IW 
S. E. 384. 

To say that the "evidence in this 
case did not justify the instructions" 
is an admission that there was evi- 
dence in the cause upon which the 
trial court based its instructions, but 
a denial of its sufficiency. The pe- 
tition should have set out the evidence 
and pointed out wherein it was insuf- 
ficient as a basis for the instructions. 
The supreme court of appeals will 
not undertake that burden. The fact 
that the greater part of the evidence 
had already been discussed in the pe- 
tition in another connection does not 
relieve the petitioner from the neces- 



Appeal and Error 



271 



sity of showing that there was not 
sufficient evidence to support the in- 
structions. Lorillard Co. v. Clay, 127 
Va. 734, 104 S. E. 384. 

Refusal of Amended and Supple- 
mental Bill. — While the assignment of 
error relied on in the petition for an 
appeal in this cause is not as specific 
^s it might have been, it is clear that 
the error complained of is the refusal 
cf the trial court to permit an 
amended and supplemental bill to be 
filed, and is sufficient. The petition 
gives a history of the proceedings in 
the cause, the substance of the al- 
legations of the original and amended 
bills and of the evidence rejected be- 
cause of a supposed variance at the 
trial of an issue awarded on the origi- 
nal bill, and then "submits" that in the 
light of the evidence there was no such 
variance sought to be set up by the 
amendment as justified the trial court 
in refusing the amendment and dis- 
missing the bill. Laskey v. Burrill, 105 
Va. 480, 54 S. E. 23. 

d. Certificate of Counael. 

A petition for appeal, etc., shall not 
be presented until some counsel oj 
attorney of the appellate court shall 
certify that, in his opinion, it is proper 
that the decision should be reviewed 
by such court. Va. Code 1919, § 6346; 
Barnes Code, ch. 135, § 8. 
• IMects in Certificate. — An appeal 
will not be dismissed as having im- 
providently awarded for mere formal 
defects in the attorney's certificate ap- 
pended to the petition. Murphy v. 
Fairweather, 72 W. Va. 14, 77 S. E. 321. 

Though the attorney's certificate is 
limited in terms to only decree and 
misdescribes it, giving a wrong date, 
it will be taken as having been in- 
tended to cover all the assignments of 
error in the petition. Murphy v. Fair- 
weather, 72 W. Va. 14, 77 S. E. 321. 

8^. Transcript of Record. 

Must Acconnpany Petition. — Va. 
Code 1919, § 4933. 
Same — Notice to Opposite Party or 



Counsel— Certificate of Clerk. — Va. 
Code 1919, § 6339. 

Costs and Fees. — See post, "Prep- 
aration and printing of Record," 

VII, G, 6. 

Z%. To Whom Petition Presented — 
Endorsement of Judge. 

To Siq)reme Court of Appeals or a 
Judge Thereof. — Va. Code 1919, §§ 
4934, 6347; Barnes Code, ch. 135, §§ 
2, 9. 

E. ALLOWANCE OF APPEAL 
AND WRITS OF ERROR. 

1. When and by Whom Allowed. 

When Writ of Error Allowed— If 
Denied by Judge in Vacation Court 
May Allow It— Va. Code 1919, § 4935. 

When Appeal, etc., Allowed. — Va. 
Code 1919, § 6349. 

West Virginia.- W. Va. Const. Act 

VIII, § 6. Barnes Code, ch. 135, § 
12, provides: *'The court or judge to" 
whom a petition is duly presented, if 
of opinion that the decision complained 
of ought to be reviewed, may allow 
an appeal, writ of error or super- 
sedeas." 

Barnes Code, ch. 160, § 5, provides: 
"In vacation of the supreme court of 
appeals, a writ of error may be 
awarded by any judge thereof." 

Under the civil law, unlike the prac- 
tice in West Virginia, when appeal 
was taken, it was done at the same 
term, upon application to the trial 
court, and when done, the decree never 
became final. Wingfield v. Neall, 60 
W. Va. 106, 113, 54 S. E. 47. 

E^. REJECTION OF APPEAL. 

When to Be Rejected.— Va. Code 
1919, § €348, amended by Acts 1920, 
p. 416. 

Effect of Rejection.— Barnes W. Va. 
Code, p. 1152, ch. 135, § 11, provides: 
"In a case wherein the court shall 
deem the judgment, decree or or- 
der complained of, plainly right, 
and reject it on that ground, no 
other petition therein shall afterward 



272 



Appeal and Error 



be entertained. But the rejection of 
such petition by a judge in vacation, 
shall not prevent the presentation of 
such petition to the court when in 



session. 

F. SERVICE OF PROCESS UPON 
APPEAL, WRIT OF ERROR 
OR SUPERSEDEAS. 

Va. Code 1919, § 4936. Barnes W. 
Va. Code, p. 1152, ch. 135, § 13. 

Necessity. — ^The supreme court of 
appeals exercises its appellate juris- 
diction by appellate process only, and 
where no such process has been al- 
lowed, the appellate court is without 
power to review for error. Robinson 
V. Goldman, 59 W. Va. 145, 53 S. E. 
12. 

Correction of Appellate Process. — 
The process of this court awarded 
upon a petition from a circuit court 
erroneously reciting the date of the 
judgment of the intermediate court 
instead of the date of such order ot 
rejection of the circuit court as the 
judgment or order appealed from con- 
stitutes a mere clerical error, cor- 
rective by the record. Rosin Coal 
Land Co. v. Martin, 81 W. Va. 
33, 94 S. E. 358. 

Waiver of Process. — Where an ap- 
pellee appears by two or more counsel, 
who file briefs on the merits of the 
cause, and by letter to the clerk, join 
in requesting a submission of the i 
cause, service of appellate process will i 
be treated as waived, although one of 
the counsel in his brief may present 
the question of such want of service. 
Dent V. Pickens, €1 W. Va. 488, 58 S. 
E. 1029. 

Where the Commonwealth is de- 
fendant in error, if the case be in the 
supreme court of appeals, process 
shall be served on the attorney-gen- 
eral. Va. Code 1919, § 4936. 

Where Condemned Felon in Peni- 
tentiary Obtained Writ of Error — No- 
tice to Be Served on Superintendent 
of Penitentiary.— Va. Code 1919, § 
4944. 



G. THE RECORD. 

1. In General. 

How Record Made Up.— Va. Code 
1919,. § 6340. Barnes Code, ch. 135, 
§6. 

Where Parties DifiEer Judge to De- 
cide. — Section 6341 of the Va. Code of 
1919, providing that where the parties 
are unable to agree, the judge shall 
decide what part of the record should 
be copied, has reference only to what 
is already a part of the record, and 
merely authorizes selections from the 
record as already completed. It does 
not authorize any additions to the 
record, and instructions which were 
not certified by the judge of the trial 
court within the period of sixty days 
fixed by statute (section 6252 of the 
Code of 1919) can not be made a part 
of the record under the provision of 
this section. New York, etc., R. Co. v. 
Chandler, 129 Va. 695, 106 S. E. 684. 

Parties May Agree Upon What 
Shall Be Copied or May Agree for the 
Facts to Be Copied in lieu of the 
Complete Record.— Va. Code 1919, § 
6342. 

Court of Appeals May Change Rules 
for Making Out and Printing. — Va. 
Code 1919, § 6343. 

If Part of Record Unnecessarily 
Copied, Who to Pay for It.— Va. Code 
1919, § 6344. 

When Appeal Is of Right from State 
Corporation Comniission Record to 
Bie Delivered of Clerk of Court of Ap- 
peals.— Va. Code 1919, § 6354. 

Transmission of Record — ^Time for 
Presenting. — Barnes W. Va. Code, p. 
1150, ch. 135, § 5. 

Barnes Code, ch. 135, § 17, amended 
by Acts 1921, p. 168. 

Where a party complaining of a 
judgment or decree files his petition 
with the"* clerk of the court below 
within one year from the date of the 
entry of such judgment or decree and 
procures said petition together with 
the original record to be transmitted 
to the clerk of this court and filed in 



Appeai, and Error 



273 



his office within one year from such 
date, an appeal allowed thereon within 
one year and two months from the 
entry of the judgment or decree com- 
plained of will not be dismissed be- 
cause a transcript of the record is 
not filed within such time. Snuffer v. 
Spangler, 79 W. Va. 628, 92 S. E. 106. 

1 Record at Law. 

a. What Constitateft. 

(1) Generally. 

Statutory Provision.— Va. Code 1919, 
§ 6340. Barnes W. Va. Code, p. 1151, 
ch. 135, § 6. 

Grounds Justifying^ Ordbr. — Where 
the entire record of the proceedings 
had in the trial court is brought up, an 
order setting aside the verdict of a 
jury will be reversed as erroneous, 
unless sufficient grounds appear in the 
record justifying such order. Adams 
V. Adams, 79 W. Va. 546, 92 S. E. 463. 

Motion to Strike from Record. — 
Where defendant in due time filed its 
plea to the jurisdiction and the same be- 
came a part of the record, it could only 
be expunged from the record on a mo- 
tion to strike out, and an order of the 
court, on an objection of plaintiff to 
the plea, not rejecting the plea, but 
merely holding that the plea was not 
good, can not be held to have sup- 
plied the place of the necessary motion 
to strike out. If there had been a for- 
mal motion to reject, such a motion 
would have been inappropriate because 
the plea had alrea'dy become a part of 
the record. Bank v. Ashworth, 122 
Va. 170, 94 S. E. 469. 

(2) Illustrations. 

Orders. — Orders appended to a brief 
of counsel are not part of the record. 
Dunfee v. Childs, 59 W. Va. 225, 231, 
53 S. E. 209. 

No particular form of identification 
of a bill of exceptions in an order, de- 
signed to make it a part of the record, 
nor, in the bill, of a paper intended to 



be made a part of it, is necessary. Any 
terms of description indicating, with 
reasonable certainty, intention to make 
a paper part of a judicial record is 
sufficient. Marshall v, Stalnaker, 70 
W. Va. 394, 74 S. E. 48. 

Filing Exhibit with Demurrer.— It 

is an unusual practice to file an exhibit 
v^ith a demurer to a bill, and it is not 
approved. Where the complainant 
has filed with his bill as an exhibit a 
selected portion of another record, and 
it is necessary, in order to show the 
real facts established by such se- 
lected portion and the real value 
thereof, to file an additional paper 
from such record, the proper practice 
is to move the court to require the 
complainant to file with the bit! such 
additional part as may be necessary 
from the other record. Practically 
the same result was accomplished in 
the trial court by treating the exhibit 
filed with the demurrer as though it 
had been filed with the bill, and while 
this method of procedure is not ap- 
proved, it would be a vain and useless 
thing to remand the cause to have the 
exhibit brought into the cause in a 
regular way, and as there was no ob- 
jection made to the mode of proce- 
dure in the trial court, it will be con- 
sidered in this court as a part of the 
record. Old Dominion Iron, etc., Co. 
V. Chesapeake, etc., R. Co., 116 Va. 
166, 81 S. E. 108. 

Demurrer to Evidence — Act Abol- 
ishing Bills of Exception.— Acts 1916, 
chapter 406, page 708, abolishing bills 
of exception, has no application to the 
pleadings which are per se a part of 
the record. A demurrer to the evidence 
is as much a part of the record as any 
other pleading, and hence is not af- 
fected by the act aforesaid. Lynch- 
burg Foundry Co. v. Dalton, 121 Va. 
480, 93 S. E. 587. 

A statement of costs in the trial 
court attached to a petition for an ap- 
peal to this court is no part of the 
record, and hence can not be consid- 



274 



Appeai. and Error 



ered by this court. Hall v. White, 114 
Va. 562, 77 S. E. 475. 

Plea to the Jurisdiction. — Where de- 
fendant in due time filed its plea to 
the jurisdiction, and it was accepted 
and filed by the clerk at rules in the 
exercise of a ministerial and manda- 
tory duty, it became thereby as much 
a part of the record as the declaration 
itself. Bank v. Ash worth, 122 Va. 170, 
94 S. E. 469. 

RuL'ng on Plea. — An order of court 
holding that a plea to the jurisdiction 
was bad, is clearly a judgment upon 
the pleadings, and requires no excep- 
tion to be stated in the order and no 
bill of exception to preserve the rights 
of the defendant thereunder. Bank v. 
Ashworth, 122 Va. 170, 94 S. E. 469. 

Rejected Plea. — Where a plea is 
tendered, and objection thereto is sus- 
tained, and an exception is taken, and 
the record shows the ruling and ex- 
ception and identifies the plea, such 
plea is a part of the record. Brown v. 
Cook, 77 W. Va. 356, 87 S. E. 454. 

Striking Special Plea. — When a spe- 
cial plea, regularly filed at rules, is at 
a subsequent term of the court on mo- 
tion struck out, and the order of the 
court shows an exception by defend- 
ant to this action, such plea thereby 
becomes a part of the record, and the 
action of the court thereon may be 
reviewed here on writ of error. Miller 
V. Starcher, 86 W. Va. 90, 102 S. E. 
809. 

A plea never authoritatively in the 
record or expressly stricken out, must be 
made the subject of a bill of excep- 
tions or an express order of the court, 
to make it a part of the reccrd on ap- 
peal. Bank v. Ashworth, 122 Va. 170, 
94 S. E. 469. 

A plea that is stricken out by the 
court is as though it had never been 
tendered, unless it is made a part of 
the record by a bill of exception, or by 
an express order of the court, and if 
it is not a part of the record, then the 
action of the court in striking it out 



is not a subject of review in the ap- 
pellate court, as nothing outside of the 
record can be looked to or considered. 
An entry on the order book that the 
defendant excepted to the action of the 
court in striking out his pleas can not 
perform the function of a bill of ex* 
ception, and does not make the pleas 
a part of the record. Such entr> 
amounts to nothing more than saving 
the point. Leary v. Briggs, 114 Va. 
411, 76 S. E. 907. 

Opinion of Trial Judge. — It is com- 
mendable in the judge of a circuit court 
to file in a cause his written opinion 
therein, and it is not reversible error 
to make the same a part of the record 
in the case. In such case, however, 
the appellant or plaintiff in error is not 
bound to include such opinion in the 
record with his application for appeal 
or writ of error. Stover r. Stover, 60 
W. Va. 285, 54 S. E. 350. 

The entry of record, required by stat- 
ute, of the inability of a judge to sit in 
a case, is not an order or decree in the 
case, and the failure of the transcript 
of the record for an appeal to disclose 
such an entry is no evidence that the 
entry was not made, although certified 
by the clerk to be "a true and correct 
transcript and copy of all papers, evi- 
dence, certificates, orders and decrees 
as appear of record in my office." 
Where the court is one of general ju- 
risdiction, having jurisdiction of the 
subject matter and the parties, and the 
presiding judge is one authorized to sit 
in the place of the disqualified incum- 
bent, it will be presumed that the pre- 
siding judge acted under proper au- 
thority if the contrary does not affirm- 
atively appear of record. Smith v. 
White, 107 Va. 616, 59 S, E. 480. 

Bill of Exceptions. — See post, £X 
CEPTIONS, BILL OF. 

Evidence. — See post, EXCEP- 
TIONS, BILL OF. 

Evidence given on the trial of an 
action at law is no part of the record, 
unless made so by a proper bill of 



Appeai. and Error 



275 



exceptions. Colby v. Reams, 109 Va. 
308, 63 S. £. 1009. 

This court can not review the action 
of the trial court in fixing the compen- 
sation allowed in a condemnation pro- 
ceeding, when the evidence upon which 
the trial court acted is not made a 
part of the record. Virginia, etc., R. 
Co. V. Nickels, 116 Va. 792, 82 S. E. 
693. 

Where an assignment of error com- 
plains of the action of the court in re- 
fusing to allow a witness to answer a 
question, the failure of the record to 
disclose by avowal or otherwise what 
answer the witness would have made, 
or what knowledge he had on the sub- 
ject, is fatal to the assignment. Fardis 
I'. DuPont, etc., Co., 123 Va. 88, 96 S. 
E. 164. 

To make the evidence in action at 
law part of the record, it is only neces- 
sary to use such means of identifica- 
tion in the bills of exception and or- 
ders as make the adoption thereof 
reasonably certain. Wilson v, Shrader, 
73 W. Va. 105, 79 S. E. 1083. 

The evidence in an action of debt, 
dependent upon the same issues of 
fact as those involved in another ac- 
tion of assumpsit, is made part of the 
record in the latter by the following 
agreement filed therein: "The parties 
hereto agree that the facts in this case 
are as follows: (Here insert the tran- 
script of the evidence as certified by 
Henry Garfield Chaney, the official 
stenographer of this court, as re- 
ported in the same styled case, marked 
Debt No. 1., tried at the September 
Term of this court, 1908.)" Wilson v. 
Shrader, 73 W. Va. 105, 79 S. E. 1083. 
As to necessity that record show ex- 
pected answer to question not per- 
mitted to be answered, see post, EX- 
CEPTIONS, BILL OF. 

The instructions are no part of the 
record in an action at law unless made 
so by bill of exceptions or certificate 

• 

m accordance with the statutory re- 
quirements on that subject. Acts 



1916, p. 722, now Code 1919, § 6252, 
or Acts 1916, p. 708, now Code 1919, 
§ 6253. New York, etc., R. Co. v. 
Chandler, 129 Va. 695, 106 S. E. 684. 
See post, EXCEPTIONS, BILL OF. 

This court will not reverse a judg- 
ment for the refusal to give an ap- 
parently good instruction, when the 
record does ftot appear to contain all 
the instructions given and does not 
show that the refusal to give such 
instruction was not justified on the 
ground that the point of the instruction 
was completely covered by some other 
instruction given but not brought up 
with the record. Teter v. Franklin 
Fire Ins. Co., 74 W. Va. 344, 346, 82 
S. E. 40. 

The judgment of a trial court set- 
ting aside a verdict because contrary 
to the law and the evidence can not be 
reviewed in the appellate court when 
the instructions given by the trial 
court are not made a part of the re- 
cord. This court can not assume that 
such instructions were free from er- 
ror, nor pass at all upon that ground 
for setting aside the verdict. Fore- 
man V, Norfolk, etc., Co., 106 Va. r70, 
56 S. E. 805. 

If the record does not show what 
instructions were given by the trial 
court an exception to the ruling of the 
court refusing to give a single instruc- 
tion will not be considered by the ap- 
pellate court, as the rejected instruc- 
tion may have been covered by other 
instructions given. Kecoughtan Lodge 
No. 29 V. Steiner, 106 Va. 589, 36 S. 
E. 569. 

Judge's Certificate. — A vacation or- 
der of a judge certifies the presenta- 
tion to him of bills of exception and 
a transcript of all the evidence, and 
certifies that for identification the bills 
were numbered as bills of exception 
by a number to each, and that the cer- 
tificate of evidence was marked "Cer- 
tificate of Evidence," and certifies that 
the bills were signed, and that the 
certificate of evidence was also signed 



276 



Appeai. and Error 



by the judge, and the order says that 
bills and certificates were ordered to 
be made a part of the record. The 
bills refer to the "Certificate of Evi- 
dence*' as part of them. The "Cer- 
tificate of Evidence" is part of the rec- 
ord, and brings the evidence before 
this court. Gross v. Gross, 70 W. Va. 
317, 73 S. E. 961. 

Affidavits supporting a motion for 
new trial are not included in record 
unless made part of the record by 
proper bills of exception. Smith v. 
Withrow, 129 Va. 668, 106 S. E. 694. 

The appeal bond is no part of the 
record. Harrison v, Harman, 76 W. 
Va. 412, 85 S. E. 646. 

b. Effect of Certificate of Clerk. 

The certificate of the clerk of the 
trial court to a record brought to the 
Virginia supreme court of appeals, 
made up and signed by him, is a verity 
as to the clerk, and can not be im- 
peached, modified or changed by the 
subsequent ex parte affidavit of said 
clerk. Furthermore, rule 1 of this 
court provides that the court will not 
read any affidavit in support of, or op- 
position to any motion hereafter made 
to the court, unless reasonable no- 
tice in writing be given to the oppos- 
ing party of the time and place of tak- 
ing the same. Yellow Poplar Lum- 
ber Co. V. Thompson, 108 Va. 612, 62 
S* E. 358. 

c. Papiers Merely Copied into the 
Record. 

Want of Identification of Bill of Ex- 
ceptions. — A judgment will be affirmed 
for want of identification in the record 
of necessary bills of exceptions. 
Lambert v. Gallipolis, 64 \V. Va. 105, 
60 S. E. 1099. 

d. Conclusiveness of Record 

Where the record clearly shows 
that the case was submitted upon the 
general issue as well as others, and 
that the trial court found upon the 
general issue, as well as others, in 
favor of the defendant, that fact can 



not be called in question by the plain- 
tiff on a writ of error, and if no ob- 
jection was made to the judgment in 
the trial court, it is binding and con- 
clusive, and no informality in the re- 
cord can be taken advantage of in this 
court. Sinclair v, Fairfax, 119 Va. 
245, 89 S. E. 1070. 

Although counsel for the defendant 
suggested in his brief and in the oral 
argument that the record before the 
court was inadequately and imper- 
fectly made up and was not just to 
the defendant, it is obvious that the 
court must dispose of the case on the 
record as it came before it. Brenard 
Mfg. Co. r. Brown, 120 Va. 757, 92 
S. E. 850. 

Where objection is made to an in- 
struction as modified by the court, and 
exception is duly taken to the action 
of the court in giving it, this court 
must deal with the instruction as it 
appears in the bill of exception, disre- 
garding any "verbal amendment** made 
by the court, especially when made 
in the absence of the jury; and the 
fact that the court certifies that no 
amendment 'Verbal or otherwise" to 
the instruction was made or asked, 
does not deprive the party excepting 
of the right to complain here of the 
error in the instruction as it appears 
in the record. Honaker Lumber Co. 
V. Call, 119 Va. 374, 89 S. E. 506. 

e. Conflict in Record. 

A recital in a bill of exception of a 
caution to counsel, by the court, 
against comment in argument upon a 
matter not in evidence, given in re- 
sponse to an objection, sufficient to 
cause him to desist, and a judicial 
declaration that the matter was not in 
evidence, contradicts and disproves a 
stated conclusion therein that the re- 
mark went to the jury, over the ob- 
jection made. Hodge v. Charleston, 
etc., R. Co., 79 W. Va. 174, 90 S. E. 
601. 

Bill of Exceptions Not Contradict- 



Appkal and Error 



277 



ing Court's Order. — A bill of excep- 
tions taken and properly signed show- 
ing that the accused was not present 
when a view was had by the jury of 
the scene of the tragedy does not con- 
tradict the court's order showing that 
he left the court house with the jury, 
and returned with it after the view was 
had. The bill of exceptions simply 
supplies facts not shown by the order. 
State r. McCausland, &2 W. Va. 525, 
96 S. E. 938. 

3. Record in Chancery. 

See ante, "Record at Law," VII, 
G, 2. 

An answer, filed at rules, is a part 
of the record of the cause, and pre- 
sumed to be a part of the foundation 
of the final decree, though not men- 
tioned in any order in the cause, if 
process has been executed and suf- 
ficient time to regularly mature the 
cause has elapsed, and nothing to 
the contrary appears in the record. 
Towner v. Towner, 65 W. Va. 476, 64 
S. E. 732. 

Record. — A demurrer incorpo- 
rated in the body of an answer, 
but not mentioned or referred 
to in the caption thereof, or in 
any decree or order in the cause, will 
be regarded as not having been 
brought to the attention of the court, 
and treated as a fugitive paper. Mc- 
Gaw V. Trader's Nat. Bank, 64 W. Va. 
509, 63 S. E. 398; Cross v. Gall, 65 W. 
Va. 276, 64 S. E. 533. 

Summons. — "In equity causes, we 
think, the summons is a part of the 
record for all purposes. Section 6, 
chapter 135, Code 1906, relating to the 
making up of records for appeal to 
this court so implies. In Pickens v. 
Stout, 67 W. Va. 422, 439, 68 S. E. 354, 
on the question of the statute of limi- 
tations then involved, we. looked to the 
process to ascertain the fact of its date 
and service, as constituting a part of 
the record." Wildasin v. Long, 74 W. 
Va. 583, 82 S. E. 205, citing also, Lam- 
bert V. Ensign Mfg. Co., 42 W. Va. 



813, 817, 26 S. E. 431. See generally,, 
post, SUMMONS AND PROCESS." 

4. Amendment of Record after Term 
Ended. 

The record upon which a judgment 
or decree is brought into the appellate 
court on a writ of error or appeal, can 
not be amended or altered as to matter 
upon which it is based. DeBoard v. 
Camden Interstate R. Co., 62 W. Va. 
41, 50, 57 S. E. 279. 

A nunc pro tunc order may be made 
by the trial court, notwithstanding the 
pendency of the case in the supreme 
court on writ of error, and when such 
order is for the purpose of recording 
a decision made by the court prior to 
the granting of the writ of error, it 
can be used to supplement the record 
in the supreme court. Scott v. Newell, 
69 W. Va. 118, 70 S. E. 1092. 

A final judgment, rendered but not 
entered by reason of inadvertency of 
the clerk, may be entered by a nunc 
pro tunc order at a term of the court 
subsequent to the one at which it was 
rendered and a writ of error to such a 
judgment awarded and perfected be- 
fore entry thereof may be sustained by 
the filing of a supplemental record in 
the appellate court, showing amend- 
ment by such nunc pro tunc order. 
Schoonover v. Baltimore, etc., R. Co., 
69 W. Va. 560, 73 S. E. 266. 

6. Preparation and Printing of Record. 

Statutory Provisions. — Va. Code 
1919, §§ 6357, 6360. 

Barnes Code, ch. 135, §§ 18, 19 
amended by Acts 1921, Reg. Sess., p. 
p. 169. See ante, "In General," VII, 
G, 1. 

Suing in Forma Pauperis — Action 
under Federal Statute. — Under the 
statute of this state the costs of print- 
ing the record in this court must be 
paid by the appellant, or plaintiff in 
error before the printing is done; and 
as to this, there is no provision for su- 
ing in forma pauperis. It is imma- 
terial that the action is brought un- 



278 



Appeai. and Error 



der the federal employers' liability 
act, as the state follows its own modes 
of procedure though enforcing a right 
under a federal statute. Going v. Nor- 
folk, etc., R. Co., 119 Va. 543, 89 S. 
E. 914. 

Time for Deposit for Printing Rec- 
ord. — "The other ground relied upon 
for dismissal of the appeal is that the 
money for printing the record was 
not deposited with the clerk within 
six months after the case was dock- 
eted. The record shows that the case 
was docketed on the 2d of June, 1916, 
and that the deposit for printing the 
record was made on the 23d day of 
October, 1916. This deposit seems 
to have been made within six months 
from the time the appeal was docketed, 
and to be a clear compliance with the 
provision of •§ 18 of chapter 135 of the 
Code (§4998). The motion to dismiss 
the appeal is therefore overruled." 
Snuffer v. Spangler, 79 W. Va. 628, 92 
S. E. 106, 107. 

Deposit to Defray Indexing of Rec- 
ord, Fees, etc.; Mere Security Insufii* 
cient. — The provision of sec. 5 of ch. 
135 of the W. Va. Code, requiring a 
litigant seeking an appeal or writ of 
error from, a decree or to a judgment 
of a circuit court, before transmission 
of the petition and record to the clerk 
of the Supreme Court of Appeals or a 
judge thereof, "to deposit with the 
clerk of the circuit court a sufHcient 
sum of money to defray the expenses 
of the preparation and indexing of the 
record, fees for filing the petition and 
making and certifying necessary copies 
of orders, costs of transmission and 
return of the record, and the making 
of a transcript of the record, or file 
with the clerk a bond conditioned to 
pay the same, in a penalty and with 
surities to be fixed and approved by 
said clerk," and the clerk to "endorse 
on the petition that such deposit has 
been made or such bond filed," con- 
templates such procedure as a prereq- 
uisite to action upon the petition by 



the appellate court or its judges 
and prompt and unembarrassed filing 
of the transcript after allowance of the 
appellate process, and not mere se- 
curity of payment of the fees and other 
compensation of the clerk of the cir- 
cuit court. State v. Skeen, 85 W. Va. 
222, 101 S. E. 249. 

Same— Right of Clerk of Circuit 
Court to Withhold Transcript for 
Non-payment of His Fees. — If clerk 
of circuit court certifies that the re- 
quired deposit has been made, when 
in fact it has not been nor the required 
bond given, he can not withhold the 
transcript for non-payment of his fees 
and compensation, by reason of an 
agreement on the part of the appel- 
lant to make a futher deposit or pay 
his charges in full before the delivery 
of the transcript, or his legal right 
to collect such fees and compensation. 
State V. Skeen, 85 W. Va. 222, 101 S. 
E. 249. 

7. Costs and Fees. 

See ante, "Preparation and Printing 
of Record," VII, G, 6. 

H. CERTIORARI. 
See post, CERTIORARI. 

VIII. BONDS. 

A. SUSPENSION BONDS. 

Va. Code 1919, § 6338; Barnes Code, 
ch. 135, § 4. 

B. APPEAL BOND. 

%, In General. 

If the bond is regular and sufficient, 

the cause will not be reversed for ob- 
jections thereto. Clinchfield Coal Co. 
r. Wheeler, 111 Va. 265, 68 S. E. 1001. 

1. Necessity. 

a. General Rule. 

Bond Necessary.— Va. Code 1919, § 
6351; Barnes Code, § 1, ch. 135 (§§ 
14-17). See post, "Effect of Failure to 
Give Bond," VIII, B, 3. 



Appeal and Error 



279 



b. Exceptions. 

(1) Statutory Provisions. 

The exceptions to the requirement of 
bond are limited to cases "where an 
appeal, writ of error or supersedeas is 
proper to protect the es'.ate of a dece- 
dent infant, convict or insane person, 
or to protect the interest of any county, 
city or town of this commonwealth." 
Va. Code 1919, § 6351. 

Section 6351 of the Va. Code of 1919 
in effect provides tliat where an appeal 
is "proper to protect the estate of a 
decedent," no appeal bond is required. 
After an appeal has been taken by a 
party himself, in due time so far as the 
appeal is concerned, and he thereafter 
dies before the expiration of the statu- 
tory period w^ithin which an appeal 
bond would have had to have been 
given had he lived, leaving the appeal 
pending unaffected by the mere fact of 
his death, the continued pendency of 
the appeal being in such case unques- 
tionably necessary to protect his estate 
after his death, the case falls within the 
reason of § 6351. PoflF v. Poff, 128 Va. 
62, 104 S. E. 719. 

Criminal Cases. — No bond shall be 
required of any accused person as a 
condition of appeal, but a supersedeas 
bond may be required where the only 
punishment imposed in the court below 
is a fine. Const, of Va., § 88. 

2. Nature and EfiEect. 

A supersedeas bond is one of indem- 
nity, the object of which is to secure 
to a successful litigant the ultimate 
fruits of his recovery, in whole or in 
part, and to insure him against loss 
from the possible insolvency of his 
debtor, or from other cause, pending 
the appeal. National Surety Co. v. 
Commonwealth, 125 Va. 223, 99 S. E. 
657. 

3. Effect of Failure to Give Bond. 

Va. Statutory Provision. — Va. Code 
1919, § 6351. 

West Virginia.— The statute, § 17, c. 
135, W. Va. Code requiring the appeal 



to be dismissed whenever it appears that 
1 year and 2 months have elapsed since 
the date of the decree and no bond, as 
required, has been given, is mandatory, 
and the appellate court is bound to 
dismiss for failure to file the bond in 
the time prescribed. Harrison z/. Har- 
man, 76 W. Va. 412, 85 S. E. 646. 

And this is true although the bond 
has been given after the expiration of 
such period. Scott v. Coal, etc., R. 
Co., 70 W. Va. 777, 74 S. E. 992. 

On a motion to dismiss an appeal 
on the ground that the appeal bond 
was not filed -with the clerk of the 
circuit court within a year and two 
months from the date of the decree 
'appealed from, it may be shown by 
affidavits filed in this court, in resist- 
ance to said motion, that bond was 
filed with said clerk in time and ap- 
proved by him, and was subsequently 
lost or mislaid. Harrison v, Harman, 
76 W. Va. 412, 85 S. E. 646. 

4. Time of Execution. 

Barnes Code, ch. 135, § 17, amended 
by Acts 1921, Reg. Sess. p. 169. 

"Instead of the appeal bond being 
executed, as required, within one year 
from January 6, 1911, the date of the 
final decree, it was not executed for 
more than fourteen months after that 
date, so that so far as the final decree 
of January 6, 1911, is concerned, the 
appeal was plainly not perfected in 
time." Adams v. Booker, 114 Va. 796, 
796, 77 S. E. 611. 

5. Where and by Whom Taken. 

Va. Code, 1919, § 6352. 

6. By Whom Given. 

"It is not essential that the appellant 
sign the appeal bond. It may be given 
by another."- Grant v. Wyatt, 61 W. 
Va. 133, 138, 56 S. E. 187. 

6^. Necessity of Acknowledgment. 

An appeal bond need not be ac- 
knowledged by the obligors. Jacobs v, 
Williams, 67 W. Va. 377, 67 S. E. 1113. 

8. Obligee. 

Va. Code 1919, § 287, provides that 



280 



Appeal and Error 



any bond required by law to be given 
upon an appeal, etc., may be made pay- 
able to the party entitled to the benefit 
thereof. 

By Barnes W. Va. Code, p. 118, ch. 
10, § 5, any bond given upon an ap- 
peal, may be made payable to the State 
or to the party entitled to the benefit 
thereof. 

9. Penalty. 

Statutory Provisions. — Va. Code 
1919, § 6351; Barnes Code, ch. 135, 
ch. 14. 

10. Conditions. 

Va. Code 1919, § 6351; Barnes Code, 
ch. 13^5, § 14. 

As a general rule, conditions prece-' 
dent to the allowance of an appeal, pre- 
scribed by the statute, for instance that 
an appeal bond must be for twice the 
amount of the judgment, are regarded 
jurisdictional, and must be strictly 
complied with. Smith v. West Vir- 
ginia Cent. Gas. Co., 65 W. Va. 216, 
217, 63 S. E. 1096. 

The language of § 3479 of the Code 
(1904 Va. Code 1919, § 6351), declaring 
that the condition of every supersedeas 
bond shall be for the payment of all 
damages, costs, and fees, and all actual 
damages incurred in consequence of 
the supersedeas (where the judgment 
or decree appealed from is affirmed) 
is to be read in every statutory super- 
sedeas bond taken since its enactment, 
whether inserted in the bond or not, 
and is broad enough to cover the de- 
preciation in the value of state bonds 
between the date when they were di- 
rected to be delivered by the decree ap- 
pealed from and the date of their 
actual delivery, upon the affirmance of 
Said decree by the appellate court. 
Bemiss v. Commonwealth, 113 Va. 489, 
75 S. E. 115, distinguishing the case of 
Cardwell v. Allen, 28 Gratt. (69 Va.), 
184, 191, which construed § 13 of chap- 
ter 17« of the Code of 1873. 

11. Sureties. 

Indemnity to Surety. — Va. Code 
1«19, § 6353; Barnes Code, ch. 135, § 16. 



The limit of the liability of a surety 
on an appeal bond given under § 164, 
chapter 50, West Virginia Code 1906, 
conditioned that the appellant will per- 
form and satisfy any judgment which 
may be rendered against him by the 
circuit court on such appeal, is the 
penalty of the bond Grant v. Wyatt, 
61 W. Va. 133, 56 S. E. 187. 

Release as to Surety. — When upon 
trial of an action upon appeal there is 
found to be due to the appellee a sum 
not exceeding the amount of a justice's 
jurisdiction, but greater than the pen- 
alty, of such appeal bond, and judg- 
ment for such sum is entered against 
the appellant and his surety on the 
bond, and the appellee at the time of 
judgment is allowed to file a remittitur 
or release, as to the surety, of the ex- 
cess above the penalty of the bond, the 
judgment allowing the remittitur is not 
void, or prejudicial to the appellant or 
his surety. Grant v. Wyatt, 61 W. Va. 
ia3, 56 S. E. 187. 

Judgment "AfiBrmed." — Section 3485, 
Code of 1904, authorizes a partial re- 
versal, and the entry by the appellate 
court of a judgment, the effect of 
which must be to affirm in part and re- 
verse in part the original judgment. It 
must follow thart to the extent to which 
the judgment is affirmed, it is still valid 
and binding upon the original judg- 
ment debtor, and also upon the sure- 
ties in the supersedeas bond, who will 
be held to have entered into their con- 
tract with knoweldge that their liabil- 
ity und-^r it was to be controlled by the 
provisions of § 3485. National Surety 
Co. V, Commonwealth, 125 Va. 223, 99 
S. E. 657. 

By order of the supreme court of 
appeals, after a conditional reversal, 
plaintiff was allowed to enter a remitti- 
tur as to the interest, in which event it 
was de':lared that the judgment should 
stand affirmed. Defendants insisted 
that this order released the sureties on 
the supersedeas bond conditioned to 
perform and satisfy the judgment in 
case the judgment be affirmed. It did 



Appeal and Error 



281 



not appear whether the principal 
debtor w::s or was not solvent; but, if 
insolvent and defendants' plea pre- 
vailed, plaintiff would lose the principal 
of a demand to which the jury, the trial 
court, and the supreme court of ap- 
peals had adjudged it entitled. Held, 
that in reason defendants' position 
could not be sustained. National 
Surety Co. v. Commonwealth, las Va. 
223, 99 S. E. 657. 

The only modification that resulted 
in the judgment of the lower court 
from the appeal was not due to any 
change made therein by the supreme 
court of appeals or by the trial court, 
but was made 'by the plaintiff itself. 
And in no proper sense could that be 
said to constitute a change in the judg- 
ment. It recognized the continued ex- 
istence of the judgment as originally 
rendered, but refrained from exacting a 
part of it. That was not a judicial as- 
certainment by this court that the judg- 
ment, or any part of it, was void or 
voidable, but was an affirmation of the 
judgment in toto, if the plaintiff should 
elect to enter a remittitur as to the in- 
terest. National Surety Co. v. Com- 
monwealth, 125 Va. 223, 9« S. E. 657. 

It would be anomalous to hold the 
sureties bond for the entire judgment 
in the event of an absolute affirmance, 
but not for a lesser sum in case of a 
partial affirmance in conformity to the 
statute, on the supposition that the 
latter constitutes a new and different 
judgment. It is in no correct sense a 
new judgment, but an amendment of 
the old judgment, with the erroneous 
part of it expunged, made in contem- 
plation of the statute and in obedience 
to its mandate. It does not nullify the 
old judgment, but amends it, and as 
amended affirms it. National Surety 
Co. V, Commonwealth, 125 Va. 223, 99 
S. E. 657. 

12. Defective Bond. 

Procedure Where Bond Insuiiicient. 
—Where a justice takes and approves 
an appeal bond, and allows the appeal, 
though the penalty of the bond be less 



than double the amount of the judg- 
ment appealed from, as required by § 
2115, Code 1906, the court should not 
dismiss the appeal as improvidently 
awarded, or pronounce the judgment 
prescribed by statute, without first or- 
dering a new bond in sufficient penalty 
to be given by the appellant, within the 
time to be specified in such order, as 
provided by § 2121, Code 1906. Smith 
V, West Virginia Cent. Gas Co., 65 
W. Va. 216, 63 S. E. 1096. 

13. Action on Bond. 

In an action on a supersedeas bond 
to recover damages by reason of the 
suspension of a decree subsequently 
affirmed for by the delivery of state 
bonds in kind, the plaintiff is entitled 
to recover the depreciation in the 
market value of the bonds between the 
date of the suspension and the date of 
delivery, together with the difference 
between the interest (less taxes) he 
could have made on the money and 
that actually received on the bonds. 
The fact that he received the bonds in 
kind makes no difference, as he had to 
take them in a depreciated condition. 
Bemiss v. Commonwealth, 113 Va. 489, 
75 S. E. 115. 

IX. EFFECT OF APPEAL. 

C. WRIT OF ERROR. 

Alteration of Record — - Restoration 
and Certification. — Where the original 
order, showing a conviction by a jury 
composed of less than the constitu- 
tional number, is altered by some per- 
son without authority, after the case of 
the term at which the conviction was 
had, by interlining therein the name of 
an additional juryman, defendant may, 
notwithstanding the pendency of the 
case on writ of error, upon proceedings 
duly had for that purpose in the trial 
forum, have the record restored to its 
original condition, and, as restored, 
certified to the appellate court for con- 
sideration in determining the merits of 
the case. State v. Wyndham, 80 W. 
Va. 482, 92 S. E. 687. 



282 



Appeal and Error 



D. APPEAL AND SUPERSEDEAS. 

See ante, "Stay of Proceedings," 
VII, B. 

"Where an Appeal was taken, the 
judgment or decree did not become 
operative until the cause was finally 
tried and determined in the appellate 
court, as the appeal was taken at the 
same term at which final judgment or 
decree was entered in the lower court, 
and upon taking the appeal, the judg- 
ment or decree thereby became va- 
cated." Wingfield v, Neall, 60 W. Va. 
106, 112, 54 S. E. 47. 

A supersedeas does not take e£Fect 
until the bond required has been given, 
and, on the giving thereof, it becomes 
effective only from the time of the fil- 
ing thereof; not from the date of the 
allowance of the writ. If, between the 
allowance of the writ and the giving 
of the bond, the receiver, appointed by 
the decree appealed from, has taken 
possession of the property, his posses- 
sion thereof will continue during the 
pendency of the appeal. Suit v. Hoch- 
stetter Oil Co., 63 W. Va. 317, 61 S. 

E. 307, 

The perfecting of an appeal from an 
order refusing to dissolve an injunc- 
tion, together with a supersedeas, does 
not stay the operation of the injunc- 
tion, nor deprive the court below of 
power to punish a party for his con- 
tempt in refusing to obey it. Pow- 
hatan Coal, etc., Co. r. Ritz, 60 W. Va. 
395, 56 S. E. 257. 

Restoration of Dissolved Injunction. 
— An injunction which has been dis- 
solved by a circuit court is restored to 
full force and effect by the granting 
and making effective of an appeal and 
supersedeas to the decree dissolving the 
same. State v. Barrick. 80 W. Va. 63, 
92 S. E. 234. 

Appointment and Proceedings of 
Receiver.— The effect of an appeal -and 
supersedeas granted by the supreme 
court of appeals, or a judge thereof, 
to a decree of a circuit court appointing 
a receiver, is to reserve the status quo 
existincT at the time such appeal and 



supersedeas is made effective, and if at 
said time such receiver has taken 
charge of a railway company's prop- 
erty and is operating the same, he is 
authorized to retain possession of such 
railroad and continue the operation 
thereof. State v. Bell, 80 W. Va. 663, 
93 S. E. 806. 

If in such case it is desired to have 
the possession and control of such rail- 
road withdrawn from the said receiver, 
or the operation of it by him discon- 
tinued, an order to this end may be 
procured upon a proper showing under 
the latter clause of § 12 of ch. 135 of 
the Code, authorizing the entry of an 
order staying proceedings under a de- 
cree appealed from, either in whole or 
in part. State v. Bell, 80 W. Va. 663. 
93 S. E. 806. 

Curator's Bill of Conformity— Su- 
persedeas in Collateral Suit— A bill of 
conformity filed by the curator of an 
estate, praying the instructions and 
guidance of the court in the dis- 
charge of its duties as curator with re- 
spect to matters affecting the estate, to 
which special attention is directed and 
which complainant alleges can not be 
I safely disposed of except by the di- 
jrection of the court, in no wise contra- 
venes a supersedeas order in a collat- 
eral suit involving the estate. Gooch 
V. Old Dominion Trust Co., 121 Va. 
29. 92 S. E. 846. 

E. INTEREST PENDING APPEAL. 
Payment Into Court. — A defendant 
against whom a judgment or decree 
has been rendered, desiring further to 
contest and resist his liability by ap- 
pellate procedure, is not entitled to be 
relieved of the burden of interest on 
the amount of the judgment and re- 
sponsibility for the fund, during the 
pendency of the appellate proceedings, 
by payment of the amount thereof to 
the general receiver or into court, and. 
under such circumstances, a refusal of 
leave to pay it to the general receiver 
is proper, but a grant of leave to pay it 
into court is erroneous. Cresap v. 
Brown, 82 W. Va. 467, 96 S. EJ. 66. 



Appeai. and Error 



283 



X. ABATEMENT OF APPEAL. 

v^A. IN GENERAL. 

Va. Code 1919, § 6167, provides: "If, 
during the pendency of an appeal, writ 
of error, or supersedeas, the death of a 
party, or any other fact, which, if it 
had occurred after verdict in an action, 
would not have prevented judgment 
being entered, be suggested or relied 
on in abatement in the appellate court, 
the said court may, in its discretion, 
enter judgment or decree in the case, 
as if such death or other fact had not 
occurred. 

A. BY DEATH OF PARTY. 

%. Grenerally. 

Where the death of a party to a suit 
occurs before an appeal is allowed or 
writ of error is awarded, the suit or ac- 
tion abates as to the deceased party. 
If an appeal or writ of error is sought 
in behalf of the estate of such de- 
ceased party, the application must be 
made by petition of his representative. 
Poif V. PoflF, 128 Va. 62, 104 S. E. 719. 

1. Pending Appeal. 

a. Generally. 

Where an appeal is allowed or writ 
of error awarded before the death of a 
party to a suit or action, the case is 
from that moment a case pending in 
the appellate court, and under the stat- 
ute (Code of 1887, § 3307, Code ot 
1904, § 3307, Code of 1919, § 6167) there 
is no abatement in the appellate court 
because of the death. The same was 
very nearly true at common law. The 
statute efferted no other change in the 
procedure than that it expressly leaves 
it to the discretion of the appellate 
court, where the death is made known 
to such court and is suggested on its 
record, to proceed with the case and 
enter judgment or decree as if such 
death had not occurred; whereas prior 
to the .statute a practice had grown up 
requiring, in case of death of either 
party, if made known to the appellate 
court and suggested on its record, a 
revival of the appeal or writ of error 



by cons<»nt of scire facias. Poff v. Poff, 
128 Va. 62, 104 S, E. 719. 

b. Death of Appellant. 

By a decree of the lower court ap- 
pellant was "perpetually enjoined from 
practicing medicine and exercising his 
profession as a practicing physician 
within a radius of fifteen miles from 
Laurelfork." After the cause was ar- 
gued and submitted in the supreme 
court of appeals, appellant died. The 
issue upon which the cause came to the 
supreme court of appeals became a 
purely moot question, and nothing re- 
mained for it to do except to enter an 
order dismissing the cause without 
costs to either party. Branscome v. 
Cunduff, 123 Va. 352, 96 S. E. 770. 

It was insisted by counsel for the ap- 
pellant that in the instant case the con- 
troversy ought to be decided in order 
to settle the question of costs. Held: 
That the controversy in the case at bar 
having ceased to exist, leaving only 
moot questions, there could be no re- 
covery for costs in the supreme court 
of appeals, where, such a judgment de- 
pends upon the substantial result of the 
litigation, and that the case must, 
therefore, be dismissed without costs 
to either party. Branscome v. Cunduff, 
123 Va. 352, 96 S. E. 770. 

On the death of a nonresident dis- 
tributee of the estate of one dying in- 
testate in this state, pending a writ of 
error brought by him to the supreme 
court, though such death be suggested 
on the record of the supreme court, and 
order be made reviving the cause in the 
name of his next of kin or next friend 
by whom the writ of error is prose- 
cuted, the case may be heard and dis- 
posed of here on its merits, upon the 
writ of error as originally awarded, 
without reference to such death, as 
provided by § 3900. Code 1906. Butcher 
V. Kunst, 65 W. Va. 384, 64 S. E. 967. 

c. Death of Appellee. 

A suit for divorce by a wife against 
her husband, the trial court decreed a 



284 



Appeal and Lrror 



divorce to the husband on his cross- 
bill. The husband died pending appeal 
by his wife after the case was argued 
and submitted to the supreme court 
of appeals. As the husband's death 
would render inoperative a decree 
granting the wife a divorce or allow- 
ing her alimony, no decree will be en- 
tered on those subjects by the supreme 
court of appeals, except to reverse the 
original decree under review in such of 
its holdings as are found to be errone- 
ous. To this extent the decree of the 
supreme court of appeals will still be 
effective, for there can be iio abate- 
ment of the original decree by reason 
of the death of any party to the cause 
after the appeal had been allowed; and 
by virtue of the statute (Code 1919, § 
6167) the appellate court may, in its 
discretion, enter its decree dealing with 
the adjudications of the original decree 
as if no death of any party to the cause 
had occurred. Gumming r. Gumming, 
127 Va. 16. 102 S. E, 572. 

XL DISMISSAL OF APPEAL. 

A^. VOLUNTARY DISMISSAL. 

"A plaintiff in error has a right at 
any time to dismiss his writ of error 
so long as no right of the adverse party 
will be affected thereby, but he also has 
the right at any time before such mo- 
tion is made and sustained by this court 
to change his mind and withdraw the 
same." Price r. Fitzpatrick, 85 W. 
Va. 76. 81. 100 S. E. 872. 

"All three of the Dansers have ap- 
pealed, and an appeal can not be dis- 
missed at the instance of some of the 
parties over the protest or objection of! 
others, whose interests have not been j 
extinguished. Ferguson r, Millender, ' 
32 W. Va. 30, 9 S. E. 38." First Nat | 
Bank r. Danser^ 70 \V. Va. 539, 531, 74 
S. E, 623. 

B. GROUNDS. 

L In GcncnL 

Improvidently Awarded.— An appeal 
will be dismissed where it has been 
improvidently awarded. Robinson r. 



Goldman, 59 VV. Va. 145, 148, 53 S. E. 
12; Dickinson v. Mankin, 61 W. Va. 
429, 56 S. E. 824; Oppenheimer v. Tri- 
ple-State Nat. Gas, etc., Go., 62 W. 
Va. 112, 57 S. E. 271; Yoho v. Thomas. 
85 W. Va. 5U3, 102 S. E. 236. 

An appeal will be dismissed as im- 
providently awarded when not allowed 
from any order or decree in the cause. 
Robinsou 7. Goldman, 59 W. Va. 145, 
53 S. E. 12. 

A writ of error allowed to a judg- 
ment of dismissal not final should be 
dismissed as improvidently awarded. 
Armentrout v, Lambert, 79 W. Va. 602, 
91 S. E. 452. 

A judgment in an action is final when 
it is a termination of the particular ac- 
tion or suit, although it is not a final 
determination of the rights of the par- 
ties. In the case at bar, if the order 
complained of is final it is barred by 
the act of limitations, if it is not final 
ho writ of error lies, so in either event 
the writ of error must be dismissed as 
improvidently awarded. / Brown v. 
Garolina, etc., R. Go., 116 Va. 597, 83 
S. E. 981. 

Where the only complaint of a de- 
fendant is that the judgment rendered 
against him is a personal judgment, but 
he took no exception to any of the 
rulings of the trial court, a writ of er- 
ror awarded in his favor should be dis- 
missed as having been improvidently 
awarded. Bernard v. McClanahan, 115 
Va. 453, 79 S. E. 1059. 

Lack of Bill of Exceptions. — On dis- 
covery of a lack of a bill of exceptions 
after submission, the court will dis- 
miss the writ of error sua sponte, as 
having been improvidently awarded. 
Spindler r. Hamilton, 70 W. Va. 262, 
73 S. E. 820. 

Upon a motion in the appellate court 
to dismiss a writ of error as improvi- 
dently awarded upon the ground that 
"there is. and was, no legal bill of ex- 
ceptions signed and sealed by the trial 
judire in said cause," the writ of er- 
ror will not be dismissed for such rea- 
son, where the bill of exceptions as 



Appeal and Error 



285 



it appears in the record as certified is 
sufficient on its face. Schwarzchild, 
etc., Co. V. Chesapeake, etc., R. Co., 
59 W. Va. 649, 53 S. E. 785. 

Same — Completion of Record. — A 

motion to dismiss a writ of error was 
based upon the fact that the petition, 
when presented to the judge awarding 
the writ, was not accompanied by a 
complete transcript of the record, as by 
some inadvertence the bills of excep- 
tion were omitted. Afterwards and 
before the motion was presented to the 
court, the plaintiffs in error applied to 
one of the judges of the supreme court 
of appeals under § 3463, of the Code 
of 1904, for a writ of certiorari, requir- 
ing the clerk to transmit such portions 
of the record as had been theretofore 
omitted from the transcript. In re- 
sponse to this writ, the record was 
completed long before the motion was 
made, and was amply sufficient to pre- 
sent for the consideration of the court 
all of the errors which were assigned in 
the petition. The motion to dismiss 
the writ was therefore overruled. 
Bowen v. Bowen, 122 Va. 1, 94 S. E. 
166. 

Where an appeal is premature be- 
cause taken before a final termination 
of the case the appeal will be dismissed 
because improvidently awarded. Po- 
land V. Brownfield, 73 W. Va. 270, 80 
S. E. 359. 

Prior to the entry of final orders and 
payment of compensation in condemna- 
tion proceedings a writ of error and 
supersedeas will not lie, and if granted 
will be dismissed as improvidently 
awarded. Panhandle Tract. Co. v, 
Schenk, 73 W. Va. 226, 80 S. E. 345. 

Formal Defects in Petition or At- 
torney's Certificate. — An appeal will 
not be dismissed as having been im- 
providently awarded for mere formal 
defects in the petition therefor or the 
attorney's certificate appended thereto. 
Murphy i: Fairweather, 72 W. Va. 14. 
77 S. E. 321. 

Failure to Assign Error in Petition. 



— See ante, "Necessity and General 
Consideration," VII, D, 2, c, (1). 

Failure to Give Appeal Bond. — See 
ante, "Effect of Failure to Give Bond," 
VIII, B, 3. 

Certificate of E^rror Antedating Al- 
lowance of Bill of Exception. — That a 
certificate of error appended to a peti- 
tion for a writ of error antedates the 
allowance of a bill of exception in the 
transcript is immaterial and consti- 
tutes no ground for dismissal of the 
writ. Fielder v, Adams Exp. Co., 69 
W. Va. 138, 71 S. E. &9. 

Maturing Case. — Where there is no 
error in maturing a case, it will not be 
dismissed on appeal on that ground. 
Clinchfield Coal Co. v. Wheeler, 111 
Va. a65, 68 S. E. 1001. 

Death of Appellant. — See ante, 
"Death of Appellant," X, A, 1, b. 

Failure to Pay Attomesr's Fee. — Fail- 
ure to pay an attorney's fee decreed 
against the husband in a suit for di- 
vorce, where he has intimated an in- 
tention to appeal from a decree deny- 
ing him a divorce, is no ground for 
dismissal of the husband's appeal. The 
decree for the fee can be enforced by 
execution or other legal proceeding, 
but not by a denial of the hus'band's 
constitutional and statutory right of 
appeal. Hairston v, Hairston, 117 Va. 
207, 84 S. E. 15. 

2. Want of Jurisdiction. 

The appellate court of its own mo- 
tion will dismiss an appeal when the 
fact is clear that it has no jurisdiction. 
McClaugherty v, Rumburg, 71 W. Va. 
98. 76 S. E. 137; Lawson v. Hersman, 
67 W. Va. 63-6, 69 S. E. 191; Dick- 
inson 7.'. Mankin. 61 W. Va. 429, 56 S. 
E. 824; Carskadon v. Board, 61 W. Va. 
468, 56 S. E. 834; Rose v. O'Brien, 77 
W. Va. 316. 319, 87 S. E. 378; Spang- 
ler V. Ashwell, 114 Va. 325, 76 S. E. 
281- 

Where Amount in Controversy Does 
Not Give Jurisdiction. — Where it fully 
appears from the record that the sum 
or value in controversy is not sufficient 



286 Appeal and Error 



in amount to give this court jurisdic- ' B^/^. MOTION TO DISMISS, 
tion, the court will of its own motion | VV^ Va. Acts 1912. amending Code, 
dismiss the writ of error or appeal as ! ^y^ ^35 § 26. 



having been improvidently awarded. 
Yoho V, Thomas, 85 W. Va. 593, 102 
S. E. 23«; Cox V. Shay, 76 W. Va. 768, 
86 S. E. 880: Shelton v. Shrader, 73 



A motion to dismiss an appeal pend- 
ing in an appellate court should be in 
writing and should state specifically 
the grounds therefor. The notice of 



W. Va. 237, 80 S. E. 344. ! such motion, however, is not necessa- 

Where Amount Can Not Be Ascer- ' rily the motion itself. If the ground 
tained. — If the jurisdiction i^ deter- stated therein be too general, yet if in 
mined by the pecuniary amount in- ' the briefs of counsel filed the grounds 
volved. and this can not be ascertained, be specifically set forth, this will 
the appeal will be dismissed. Ritter ' amount to a substantial compliance 
Lumber Co. v. Coal Mountain Min. with the rule. Why el v. Jane Lew 
Co.. 115 Va. 370, 79 S. E. 322; Lamb Coal. etc.. Co.. 67 W. Va. 651. 69 S. 



V. Thompson. 112 Va. 134, 70 S. E. 507. 



E. 192. 



No Failure of Appellate Jurisdiction. The facts which are proper to be 
— If, after a decree denying relief on considered on a motion to dismiss a 
a "bill to foreclose a mortgage, and be- pending appeal may "be shown by ref- 
fore submission of an appeal there- erence to the prior or subsequent pro- 
from in the appellate court, the mort- , ceedings in the cause, or by affidavit, 
gagee convey the mortgaged premises or other legal competent evidence, 
to a stranger to the record, verbally | Whyel v. Jane Lew Coal, etc.. Co., 67 
agreeinsr with the grantee to refund the W. Va. 651, 69 S. E. 192. 
purchase money in case the property On such motion to dismiss an appeal 
shall be sold in the pending suit, and questions involving the merits thereof, 
not purchased by the grantor, no fail- ' or matters to be considered at the 
ure of aopellate jurisdiction is thereby hearing can not, as a general rule, be 
wrought, and a motion to dismiss the considered, nor such as require an ex- 
appeal, predicated only on these facts, amination of the whole appeal record, 
will be overruled. Shields 7'. Simon- Whyel v. Jane Lew Coal, etc., Co.. 67 
ton, 65 W. Va. 179, 63 S. E. 972. W. Va. 651, 69 S. E. 192. 
^ „- , ^ , ^ Though under § 26, ch. 135, Barnes 

3. Want of Actual Controversy. ^^^^ ^^^ appellate court may consider 

See ante, "Necessity for Existence of the merits of a cause on a mo*ion to 

Real Controversy," I, B. dismiss an appeal, the investigation 

. , -^ , ^ , . . . thereof will be- extended only far 

4. Appeal Barred by Limitations or , ^ ^ • u ^u xt. 

S . enough to ascertam whether there is 

involved a question of law or fact that 

Where Appeal, etc., Barred by Limi- | demands a formal and mature inspec- 

tations.— Va. Code 1919. § 6355. tion of the record as in determining the 

Decree Rendered Unappealable by rights of the parties upon a submis- 

Lapse of Time. — When the error, if sion for final hearing of the appeal on 

any, in an interlocutory decree dissolv- the merits of the cause. Amherst Coal 

ing an injunction has been merged in Co. v. Prockter Coal Co.. 80 W. Va. 

a final degree denying relief and dis- 171, 92 S. E. 253. 

missing the bill, an appeal from the Submission Not a Bar to Motion to 

former alone will be dismissed if it ap- Dismiss. — Submission of a case in the 

pears that the latter is unappealable appellate court does not bar a motion 

by lapse of time. Birch River Boom, to dismiss it for lack of bills of ex- 

etc. Co. V. Glendon Boom, etc., Co., ception necessary to bring into the 

71 W. Va. 139, 76 S. E. 167. record the subject-matter of the as- 



Appeal and Error 



287 



signmcnts of error. Spindler v. Haiuil- 
ton, 70 W. Va. 262, 73 S. E. 820. 

D. EFFECT OF DISMISSAL. 

See post, "Successive Appeals," 
XIII. 

"When a writ of error is taken from a 
circuit court to the supreme court, and 
it is simply dismissed, without hear- 
ing, the circuit court judgment still 
stands without action by the supreme 
court affirming it, because it takes re- 
versal to affect it, the writ of error rest- 
ing on error, in the record, and is not a 
new trial." Chenowith v. Keenan, 61 
W. Va. 108, 55 S. E. 9«1. 

In Chenowith v. Keenan, 61 W. Va. 
108, 55 S. E. 991, the court said: 
"Where the party taking the appeal 
dismisses it, of his own motion, what 
is the effect? If the plaintiff is the 
appellant, it seems to me that his dis- 
missal dismisses not merely his appeal, 
but his suit. The appeal is not the 
suit that is tried. Its only function is 
to transfer the case from the justice's 
court to the circuit court for a new 
trial. It has brought up the action and 
if abandoned, the action goes with it 
and the judgment for the defendant 
stands revived, as it were. There is no 
longer any complaint against it. li the 
defendant took the appeal and he dis- 
misses it, the judgment in favor of the 
plaintiff stands good, because he has 
ceased to complain of it." 

Th€ dismissal of an appeal from an 
interlocutory decree, not deciding the 
merits of the case, but simply refusing 
to permit pleading to be amended, on 
the ground that the appeal was im- 
providentfy awarded, is in no sense an 
affirmance of said decree, but leaves 
open the question therein decided. 
Hobson V. Hobson, 105 Va. 394, 53 S. 

E. 964. 

When Dismissal Final — Statutory 
iPiroviaiona.— Va. Code 1919, § 6356. 

Date of Order of Dismissal.— When 
an appeal is dismissed by an order" of 
the supreme court of appeals, it stands 
dismissed and ended on the actual date 



of such order, and does not continue 
to exist as an appeal to the end of the 
term of the supreme court of appeals. 
Dunfee v. Childs, 59 W. Va. 2i5, 53 S. 
E. 209. 

XII. REINSTATEMENT. 

See post, "Successive Appeals," 
XIII. 

When Appeal, etc., May Be Rein- 
stated.— Va. Code 1919, § 6356. 

XIII. SUCCESSIVE APPEALS. 

"The dismissal of an appeal for fail- 
ure to comply with some requirement 
of the law governing appeals does not 
bar a second appeal, nor a writ of er- 
ror, taken in due time." Kelner v. 
Cowden, 60 W. Va. 600, 604, 55 S. E. 
649. 

"A party may, after an * appeal has 
been dismissed for informality, if with- 
in five years, bring up the case again." 
Kelner v. Cowden, 60 W. Va. 600, 640, 
55 S. E. 649. 

When an appeal has been dismissed 
for failure on the part of the appellant 
to deposit with the clerk of the appel- 
late court within six months after his 
case has been docketed, a >sufficient 
amount to pay for printing the record, 
as provided by § 18, chapter 135, West 
Virginia Code, such appeal may be re- 
newed at any time within two years 
from the date of the judgment, order 
or decree appealed from. Kelner v. 
Cowden, 60 W. Va. 600, 55 S. E. 649. 

XIV. PROCEEDINGS ON REVIEW 
IN COURT OF APPEALS. 

y2A. IN GENERAL. 

Docketing Appeal. — Barnes W. Va. 
Code, p. 1152, ch. 135, § 10. 

Docketing and Hearing of Case. — Va. 
Code 1919, §§ 4936, 6361, 6350. Barnes 
Code, ch. §§ 13, 14,; ch. 135, §§ 13, 20. 

Process and Order of Publication. — 
Va. Code 1019, §§ 4936, 6073, 6350. 
Barnes Code, ch. 124, §§ 15-17. 

Where Writ of Prohilution and Man- 
damus Issued and Tried. — Va. Cod« 
1919, § 5872. 



288 



Appeal and Error 



Season for Decision to Be in Writing. 

— The reasons for the reversal or affirm- 
ance of a case by the Supreme Court of 
Appeals shall be stated in writing and 
preserved with the record of the case. 
Va. Const. § 90; W. Va. Const. Art. 
VIII, § 5; Barnes Code, ch. 135. § 22. 

The above provision is directory only. 
Horner z;. Amick. 64 W. Va. 172, 61 S. 
E. 40. 

Syllabus. — It shall be the duty of the 
Supreme Court of Appeals to prepare a 
syllabus of the points adjudicated in each 
case concurred in by three of the judges 
thereof, which shall be prefixed to the 
published report of the case. W. Va. 
Const. Art. VIII, § 5; Barnes W. Va. 
Code, p. 1154, ch. 135, § 22. 

Bill Demurred to Cannot Be Amended 
or Treated as Amended on Appeal. — To 
avoid the consequence of a demurrer well 
taken and overruled, the bill can not be 
amended in the appellate court or there 
treated as having been amended. Rob- 
erts V, Huntington Devel., etc., Co., 85 
W. Va. 484, 102 S. E. 93. 

Nature of Action as Dealt with in 
Lower Court. — Where a declaration con- 
tained three counts, neither of which 
consisted of the single charge of false 
arrest and imprisonment, and the grava- 
men of each count rested upon a charge 
of malicious prosecution, and the case 
below was proceeded with by court and 
counsel as an action for malicious prose- 
cution, the Supreme Court of Appeals 
will deal with the case as an action for 
malicious prosecution. Clinchfield Coal 
Corp. V. Redd, 123 Va. 420, 06 S. E. 
836. 

Designation of Parties.— Barnes W. 
Va. Code, p. 1155, ch. 135, § 24. 

In the absence of necessary parties 
this court will not enter upon the con- 
sideration of other points of error in the 
decree appealed from. Hayhurst v. 
Hayhurst, 71 W. Va. 735, 77 S. E. 361. 

Parol Testimony.— Barnes W. Va. 
Code, p. 1155, ch. 135, § 25 provides: 
"The Supreme Court of Appeals shall 
not hear parol testimony except in cases 



in which it has original jurisdiction." 
Loss of Record in Appellate Court- 
Barnes Code, ch. 130, § 14. 

A. TRANSFER OF CASE TO AN- 

OTHER PLACE OF SESSION. 

Va. Code, 1919, § 5871. 

A notice of intention to insist upon 
the hearing of a cause, at a certain 
term of the appellate court, at a place 
outside of the grand division to which 
the cause belongs, and to ask that it 
be placed in the argument list and set 
for hearing at said term, is sufficient. 
Jacobs V, Williams, 67 W. Va. 377, 67 
S. E. 1113. 

B. TAKING UP CAUSES OUT OF 

TURN. 
What Causes Heard Out of Turn.— 

Va. Code, 1919, § 6362. 
Motion for Submission — Denial — 

A motion by appellant to submit a pend- 
ing appeal for decision on the merits, 
in advance of the date regularly fixed 
therefor upon the docket of the appellate 
court, will be denied when based upon 
affidavits touching the merits of the 
cause, and made without leave of court 
or notice to the appellee. Amherst Coal 
Co. V, Prockter Coal Co., 80 W. Va. 171. 
92 S. E. 253.. 

D. RULE OF STARE DECISIS. 
See post, STARE DECISIS. 

DJ^. NUMBER OF JUDGES NECES- 
SARY TO DECISION. 

Const, of Va. § 88; W. Va. Const. Art 
VIII, § 4; Va. Code 1913, § 6365. 
Barnes Code, ch. 135, § 1. 

Afhrmed by Concurrence of Three 
Judges.— Decree of lower court af- 
firmed by the concurrence therein of 
three judges, one of them voting to 
affirm for one reason and tw^o for an- 
other. Batten v, Hope Natural Gas Co., 
71 W. Va. 481, 76 S. E. 889. 

E. EFFECT OF EQUAL DIVISION 

OF COURT. 
The affirmance of the judgment of a 
trial court by an equal division of the 
judges of the Virginia Supreme Court 



Appkai, and Error 



289 



of Appeals results from necessity, and 
independently of statute. The former 
statute in this state on that subject was 
simply declaratory of a well-settled 
pre-existing rule of necessity which is 
not changed by the omission from the 
present statute of anything on the sub- 
ject. Charlottesville, etc., R. Co. v, 
Rubin, 107 Va. 751, 60 S. E. 101. See 
also, Auditor v, Chevallie, 5 Call. (9 
Va.) 107. 

E/2. THEORY OF CASE IN LOWER 
COURT. 

Where a case is tried throughout in 
the court below and presented in the 
Supreme Court of Appeals upon the as- 
sumption of a certain fact, that assump- 
tion must be taken as a concluded 
fact in the case. Nelson County v. Lov- 
ing, 126 Va. 283, 101 S. E. 406. 

Where an action having for its basis 
the alleged negligence of the defendant 
is tried in the court below, upon the 
theory that such negligence arises from 
defendant's failure in a particular regard, 
which turns out to be unsupported by 
any competent evidence, a verdict and 
judgment rendered thereon cannot be 
supported because it may appear that the 
defendant might be negligent upon 
another theory not presented at this trial. 
Alford V. Kanawha, etc., R. Co., 84 W. 
Va. 570, 100 S. E. 402. 

F. SCOPE. 

1. In General. 

Every Point 'Fairly Arising. — ^When a 
judgment of decree is reversed or af- 
firmed by the Supreme Court of Appeals, 
every point fairly arising upon the rec- 
ord of the case shall be considered and 
decided. W. Va. Const. Art. VIII, § 5; 
Barnes Code ch. 35, § 22. 

This Provision is Directory Only. — 
Horner v, Amick, 64 W. Va. 172, 61 S. 
E. 40. 

Confined to the Record. — The appel- 
late court is limited to the consideration 
of errors which are apparent, upon the 
face of the record. Southern R. Co. v. 
Hill, 106 Va. 501, 66 S. E. 278; Dunfee 

—19 



V. Childs, 59 W. Va. 225, 231, 53 S. E. 
209; Norfolk, etc., Tract. Co. v. Nor- 
folk, 115 Va. 169, 178, 78 S. E. 545; 
Townley Bros, v, Crickenberger, 64 W. 
Va. 379, 63 S. E. 320; Hilliard v. Union 
Trust Co., 123 Va. 724, 97 S. E. 335. 

Nothing outside of the record can be 
looked to or Considered by the appellate 
court. Leary v, Briggs, 114 Va. 411, 76 
S. E. 907. 

It is the function of the appellate 
court to pass upon the very case which 
was before the lower court. United 
Stdtes Mineral Co. v. Camden, 106 Va. 
663, 664, 56 S. E. 561. 

The jurisdiction of the Supreme Court 
of Appeals is in the main appellate, and 
when acting in that capacity it does not 
search the record to ascertain if any 
error may perchance have inadvertently 
crept into it, but it reviews the rulings 
and judgments of trial courts on matters 
brought to their attention and decided 
by them. Lorillard Co. z/. Clay, 127 Va. 
734, 104 S. E. 384. 

Record by Former Appeal. — While 
this* court may, for some pur- 
poses, look to the record on a former 
writ of error in the same case, the 
question of whether or not the verdict 
of the jury upon the last trial should 
be set aside because contrary to the 
evidence can only be determined by a 
consideration of such evidence as was 
before the jury. Spriggs v. Jamerson, 
115 Va. 250, 78 S. E. 571. 

Where the record is incomplete the 
court will only deal with the objec- 
tions presented in a general way. 
Bowles V, Virginia Soapstone Co., 116 
Va. 690, 699, 80 S. E. 799. 

Evidence Must Be in Record. — As- 
signments of error as to the overruling 
or sustaining of objections to the recep- 
tion of testimony, cannot be considered 
in the appellate court where they ar2 
not presented in the record either by bil's 
of exceptions or by certificates of ex 
ception provided for by the act ap- 
proved March 21, 1916 (Acts 1916, p. 
708 \. Walters v. Norfolk, etc., R. Co. 



290 



Appeal and Error 



122 Va. 149, 94 S. E. 182. See Ramsay 
V. Harrison, 119 Va. 682. 89 S. E. 977; 
State V. Booker, 68 W. Va. 8, 69 S. E. 
295; State v. Jones, 77 W. Va. 635, 88 
S. E. 45. 

Scope — Presuix^ptions. — If the evi- 
dence is not made a part of the 
record, the Supreme Court will not re- 
verse the judgment of the trial court 
setting aside the verdict of a jury and 
entering judgment for the defendants, 
on the trial of issues properly made 
by the pleadings; but will presume 
that the court was justified in doing so. 
Scott V. Newell, 69 W. Va. 118, 70 S. 
E. 1092. 

Where neither the evidence introduced 
on the trial nor the facts proved are 
before the Supreme Court of Appeals, 
either by bill of exceptions or other cer- 
tification, an objection that the verdict 
is contrary to the evidence cannot be 
considered" by that court. Wilkerson v. 
Commonwealth, 122 Va. 920, 95 S. E. 
388. 

In the absence of the evidence, this 
court can not re-reverse the ruling of the 
trial court setting aside a verdict as con- 
trary to the law and the evidence. Al- 
though it appears from the record that 
the sole ground relied on by the defend- 
ants for setting aside the verdict was 
that the court permitted counsel for the 
plaintiff to refer to a section of the Code 
which had no possible bearing on the 
case; yet, where it does not appear 
what reasons may have controlled the 
court's action this assignment of error 
can not be passed upon when the evi- 
dence in the case is not certified. 
Lemons v, Harris, 115 Va. 809, 80 S. 
E. 740. 

Effect of Agreement of Counsel. — 
Upon an appeal to the Supreme Court, 
the case must be heard and determined 
upon the record considered and passed 
upon in the trial court, and hence an 
agreement between counsel for the re- 
spective parties that, in order to de- 
termine the rights of all parties in- 



terested in the funds in the cause, it 
shall be heard and determined in the 
Supreme Court as if certain persons 
who were not parties in the trial court 
were parties to the record, must be 
ignored. Nor will an agreement be- 
tween counsel, as to the effect of a 
former decree entered in the cause, 
be considered. Brown v. Western State 
Hospital, 110 Va. 321, 66 S. E. 48. 

The effect of a decision in a particular 
case upon other possible litigation be- 
tween the same parties can only be de- 
termined when that questioil arises. 
Norfolk, etc., R. Co. v. Allen, 118 Va. 
428, 87 S. E. 558. 

Former Adjudication or Res Adjudi- 

cata.— Plaintiffs' bill of exception stated 
that after the introduction of certain 
evidence, the plaintiff moved to be ex- 
onerated from the payment of the taxes 
in question on the ground that the court 
had already passed upon the question at 
issue in a controversy about the taxes 
of a previous year and had ascertained 
and determined that the trust funds upon 
which the taxes were levied **were not 
subject to taxation in Virginia and that 
the question then presented was res judi- 
cata, but the court overruled the motion 
and refused the relief sought." Held: 
that the record did not sustain the con- 
tention, that the liability of the trust 
fund for the taxes of the previous year 
was passed upon directly or indirectly in 
the former proceedings, and therefore 
no question of res judicata could arise 
in the present proceedings. Wise v. 
Commonwealth, 122 Va. 693, 95 S. E. 
632. 

Questions Not Assigned in Petition 
for AppeaL — See ante, "Necessity and 
General Consideration," VII, D, 2, 
c, (1). 

Matters Relied on in Appellate Court 
— Although there was a demurrer in 
the trial court to an indictment as a 
whole and to each of the sixteen counts 
thereof, the appellate court will con- 
sider only the demurrer to the counts 



Appeal and Error 



291 



relied on in the latter court. Fletcher 
V. Commonwealth, 106 Va. 840, 56 S. 
E. 149. 

CoQtiniiance. — ^A judgment overruling 
a motion to continue a case will not be 
reversed or reviewed here where 
the bill of exceptions or order of the 
court does not show that the affidavit 
in support of the motion was all the 
evidence introduced and considered by 
the court on such motion. Queen v. 
Westfall, 86 W. Va. 298, 103 S. E. 115. 
Disqualification of Juror. — Presumably 
by some oversight a juror was sworn 
and served who had served as juror in 
a previous trial of the case. After ver- 
dict for plaintiff defendant's counsel 
moved the court to set aside the ver- 
dict because of this — which motion the 
court overruled. The bill of exceptions 
set forth the foregoing facts and no 
others. There was nothing whatever in 
the certificate of the trial judge indicat- 
ing whether it was or was not known 
before the verdict was rendered that the 
juror had served on the former jury. 
Held: That taking the bill of exceptions 
alone, there was no ground upon which 
the Supreme Court of Appeals could 
interfere with the finding of the trial 
court as error will not be presumed. 
Sands & Co. v. Norvell, 126 Va. 384, 101 
S. E. 569. 

Failure to File Affidavit— Counsel for 

plaintiff called the attention of the court 

to the failure of the defendant to file 

with his plea the proper affidavit under 

section 3280, Code of 1904, denying the 

partnership. Thereupon, on the motion 

of counsel for the defendant and over 

the objection and exception of the plain- 

tiflF, the court permitted the counsel for 

the defendant to prepare and file such 

an affidavit. Plaintiff went on with the 

trial and did not ask a continuance. 

Held: Under these circumstances, 

where neither the evidence nor the facts 

were certified to the Supreme Court of 

Appeals so that that court had no facts 

showing that plaintiff's rights had been 

injuriously affected, the judgment in 



favor of the defendant should be af- 
firmed. Dean v. Dean, 122 Va. 513, 95 
S. E. 431. 

Instructions Not Certified. — Before the 
Supreme Court of Appeals can hold 
that the giving of an isolated instruction 
constituted reversible error, in a case 
where all the instructions are not cer- 
tified, it will have to clearly appear that 
the instruction in itself was vitally 
wrong, and that other instructions could 
not have cured the error. Lysle Milling 
Co. V. Holt & Co., 122 Va. 565, 95 S. E. 
414. 

What Evidence May Be Con- 
sidered by tlie Appellate Courts. 
—See post, EXCEPTIONS, BILL OF. 

Any evidence in the record may be 
considered by the appellate courts, if 
certified in any bill of exception, as 
though certified in each. Va. Code 1919, 
§ 6364. 

Same^-On Exclusion of Evidence. — 
On a motion to exclude the evidence, 
sustained by the trial court, an appel- 
late court on writ of error may, if the 
record discloses it, consider all the evi- 
dence including any improperly re- 
jected, in reaching a conclusion on the 
merits of such motion. Carter v. United 
States Coal, etc., Co., 84 W. Va. 624, 100 
S. E. 405. 

Answer Expected of Witness. — Any 
error complained of must appear to have 
been prejudicial, and, it is, therefore, 
ordinarily true that when a witness is 
asked a question to which an objection 
is sustained, if the record does not show 
by necessary implication, or by a state- 
ment of the witness, or by an avowal of 
counsel, what answer was expected, 
the exception cannot be availed of in 
the appellate court because the 
court cannot tell whether the an- 
swer would have been favorable 
or unfavorable to the party except- 
ing. Jeffress v. Virginia R., etc., Co., 
127 Va. 694, 104 S. E. 393. 

Where the trial court refuses to al- 
low a witness to answer a question, and 
exception is taken to the ruling. 



292 



Appeal and Error 



the usual practice is to allow the 
witness to answer the question in the 
absence of the jury, or for counsel to 
state what ansvrer is expected, and 
even where the argument on the ad- 
missibility of the evidence discloses the 
character of the answer, it has been 
held to be a sufficient avowal. But 
where the relevancy or materiality of 
the answer expected is not made to 
appear in some satisfactory way, the 
exclusion of the question can not be re- 
viewed. Stewart v. Rogers, 117 Va. 836, 
86 S. E. 161. 

Fairness to the lower court and the 
due and proper administration of justice 
demand that the trial judge himself 
should know before the case goes to the 
jury what the party excepting to his rul- 
ing expected to prove by the evidence 
excluded. Jeffress v. Virginia R., etc., 
Co., 127 Va. 694, 104 S. E. 393. 

Excluded Questions Considered 
Though Answers Not in Record. — In 
the instant case it was contended that 
the Supreme Court of Appeals could 
not consider the exceptions to the rul- 
ings of the court upon the admission of 
evidence, because the record did not 
show what the answers of the witnesses 
on the question at issue would have been. 
But as there was no ground to imagine 
that the trial court had the least doubt 
as to what these witnesses were ex- 
pected to show, and would not have 
ruled just as it did if express avowals 
had been made at the trial, the conten- 
tion was without merit. Jeffress v. 
Virginia R., etc., Co., 127 Va. 694, 104 
S. E. 393. 

Verdict — Reconciling Conflicting Tes- 
timony.— -In considering an assign- 
ment of error that the trial court erred 
in its refusal to set aside the verdict and 
grant the defendant a new trial, the Su- 
preme Court of Appeals cannot enter up- 
on any attempt to reconcile the conflicts 
in the evidence, its sole function being to 
determine whether the record discloses 
sufficient evidence of probative value to 
support the verdict, if such evidence was 



found credible by the jury. Hunter v. 
Burroughs, 123 Va. 113, 96 S. E. 360. 

Order Awarding a New Trial — Error 
in Pleas, Evidence or Instructions.— Up- 
on a writ of error to an order of a trial 
court setting aside the verdict of a jury 
and awarding a new trial, the plaintiff 
in error cannot, for the purpose of hav- 
ing such order reversed, complain in the 
appellate court that the trial court ad- 
mitted illegal evidence, or gave the jury 
improper instructions, or erred in the re- 
ception of a special plea of the defend- 
ant on which the jury gave no recovery 
over against the plaintiff. But the gen- 
eral rule of the preceding syllabus is 
applicable only where it is clear that the 
plaintiff in error has not been prejudiced 
by the rulings of the court with respect 
to these matters, and therefore is not 
applicable to the instant case, where the 
trial court set aside the verdict for plain- 
tiff upon evidence as to the truth of the 
defamatory words, when there was no 
issue and no evidence whatsoever on 
that subject which could have been prop- 
erly considered by the trial. White v. 
White, 129 Va. 621, 106 S. E. 350. 

\y%. Matters Not Necessary to Deci- 
sion. 

Matters Not Necessary In GeneraLp— 

Upon a proceeding in resistance of 
a state license tax upon a business or 
occupation, a portion of which is not 
interstate in such sense, it is not nec- 
essary to determine whether other 
portions thereof are interstate, in or- 
der to maintain the state's right of 
taxation. Winkelman & Co. v. Blue, 
79 W. Va. 518, 92 S. E. 124. 

Where the judgment complained of 
has to be reversed for errors in grant- 
ing and refusing instructions, it is in- 
expedient or unnecessary to consider 
an assignment of error that the judge- 
ment was contrary to the evidence. 
Honaker Lumber Co. v. Call, 119 Va. 
374, 89 S. E. 506. 

"As the case has to be remanded for a 
new trial for the reasons hereinbefore 



Appeal and Error 



293 



stated, it would be improper for this 
court to consider the ruling of the trial 
court on the motion of appellants to set 
aside the verdict because contrary to the 
evidence as the evidence may be dif- 
ferent on another trial." Rust v, Reid, 
124 Va. 1, 27, 97 S. E. 324. 

As no objection was made in the court 
below to the admission of the evidence 
on the ground* of the lack of such plead- 
ing, the question could not be raised for 
the first time on appeal. Moreover, as, 
in the instant case, the exclusion of the 
evidence was sustained on other 
grounds, it was unnecessary to de- 
termine the question. Bradshaw v. 
Booth, 129 Va. 19, 105 S. E. 555. 

On appeal from an order in mandamus 
proceedings directing respondent to give 
relators preference for the renewal of 
their leases of market stalls, where the 
issue had become moot by the execution 
of the leases by respondent, it appeared 
that prior to the time of the leases to 
plaintiffs, a lease of the same property 
had been made by respondent to two 
other parties, and the Supreme Court of 
Appeals was asked to construe a provi- 
sion in the latter lease. Held: The 
lessees not being parties in the court be- 
low, and no issue having been made by 
the pleadings involving that subject, 
any decision as to the proper construc- 
tion of the lease could not be carried 
into effect against such lessees. Such a 
decision would be merely an opinion 
upon a moot question not in issue. Levy 
V. Kosmo, 129 Va. 446, 106 S. E. 228. 

The appellate court will not pass 
upon a question where its decision is im- 
material to the proper disposition of the 
case. House v. Universal Crusher Corp., 
115 Va. 558, 559, 79 S. E. 1049. 

Affirming the judgment of the lower 
court, that the illegality of county war- 
rants themselves was an insuperable 
obstacle to their payment, the Supreme 
Court of Appeals did not deem it neces- 
sary to consider what was the effect of 
the forging of the indorsements of the 
payee on the warrants. Leachman v. 



Board of Super's, 124 Va. 616, 98 S. E. 
656. 

Question Conceded in Counsel's Brief. 
— While the Supreme Court of Appeals 
might have refrained from passing upon 
a question conceded in counsel's briefs, 
if the question had been between pri- 
vate persons or corporations, yet as the 
question was one of a public nature, the 
court felt that it should answer it. 
Mann v. Lynchburg, 129 Va. 453, 106 S. 
E. 371. 

Matters Unlikely to Arise on Another 
TriaL— A case being reversed on cer- 
tain grounds it is unnecessary to con- 
sid-er or pass upon the other assignments 
of error where none of them are likely 
to arise on a new trial of the case. Camp 
V. Christo Mfg. Co., 122 Va. 439, 445, 95 
S. E. 424; Spencer v. Loony, 116 Va. 
767, 771, 82 S. E, 745; Garnett v. Com- 
monwealth, 117 Va. 902, 83 S. E. 1083; 
Rust V. Reid, 124 Va. 1, 24, 97 S. E. 324. 

Where Verdict Bad for One Tenable 
Ground No Inquiry into Sufficiency 
of Another Grounds — If a verdict 
is erroneous and an additional rea- 
son, and the latter ground is ten- 
able